Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 1 of 18

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.

ATTORNEYS FOR APPELLANTS

Alan S. Brown

Maggie L. Smith

Bryan S. Strawbridge

Jenai M. Brackett

Abigail T. Rom

Frost Brown Todd LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

G. Daniel Kelley

Thomas E. Mixdorf

Ice Miller LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hameck Oil Company, Ltd.,

TWE Management, LLC,

Eckard Global, LLC, and

Troy W. Eckard,

Appellants-Defendants,

v.

J Group Energy I, LLC and

Bakken Oil & Gas Management, 

Inc., and HOC Bakken Legacy I, 

LLC,1

July 22, 2015

Court of Appeals Case No.

49A02-1409-PL-635

Appeal from the

Marion Superior Court

The Honorable Michael D. Keele, 

Judge

Cause No. 49D07-1311-PL-40165

 

1 We include HOC Bakken Legacy I, LLC in the caption because it was added as a plaintiff on September 8, 

2014, when the trial court granted Plaintiffs’ request to file a second amended complaint. Pursuant to 

Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 2 of 18

Appellees-Plaintiffs.

Kirsch, Judge.

[1] In 2011, Hameck Oil Company, Ltd. (“Hameck Oil”), J Group Energy I, LLC 

(“J Group”) and nonparty Eckard Global Energy, LLC (“EGE”) executed a 

Company Agreement (“Company Agreement”) forming HOC Bakken Legacy 

I, LLC (“Legacy I” or “the Company”), a Delaware limited liability company, 

involved in the business of acquiring oil and gas leases in North Dakota. 

Disputes arose, and this lawsuit ensued. J Group, and Bakken Oil and Gas 

Management, Inc. (“Bakken Oil”) (collectively, “Plaintiffs”) filed a complaint, 

later amended, against Hameck Oil, TWE Management, LLC (“TWE”), 

Eckard Global, LLC (“Eckard Global”), and Troy W. Eckard (“Eckard”)

(collectively, “Defendants”), seeking injunctive relief and, later, damages. 

Defendants sought to compel arbitration pursuant to a section of the Company 

Agreement, and after the trial court denied Defendants’ Motion to Compel 

Arbitration, Defendants now appeal and raise several issues, of which we find 

the following restated issue to be dispositive: whether the trial court erred when 

it determined that the Company Agreement’s arbitration provision did not 

apply to Hameck Oil, the Company’s Manager.

[2] We affirm. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 3 of 18

Facts and Procedural History2

The Parties

[3] Eckard is a Texas businessman, and in October 2011, he traveled to Indiana 

several times to discuss a business investment proposal with individuals, some 

or all of whom comprised Plaintiff J Group, an Indiana limited liability 

company.3 J Group likewise traveled to Texas and attended meetings and 

conferences on the subject. According to the complaint, Eckard’s proposal was 

that he, through companies he owned, and J Group would form a limited 

liability company for purposes of acquiring oil and gas leases. Eckard would be 

a minority stakeholder in the company, but would serve as its Manager; J 

Group would be majority stakeholder, would fund the venture, and would have 

certain rights to participate in key decisions, but would not be involved in the 

day-to-day operations of the business. Appellees’ App. at 7. 

[4] Following in-person meetings and oral and written communications, Legacy I 

was formed pursuant to the Company Agreement, which was executed on 

December 19, 2011. Generally speaking, Legacy I’s purpose was to acquire 

oil/gas/mineral leases that would generate income and revenue for the 

investment venture. Legacy I was formed as a limited liability company 

 

2 We held oral argument on June 17, 2014 at Purdue University’s Krannert School of Executive

Management. We thank counsel for their preparation and argument, and we commend them on their 

outstanding advocacy. We also thank the students for their insightful questions and comments posed after, 

but not specifically related to, the oral argument. 

3 The record before us indicates that J Group has four members: Ethan Jackson, and his sons, Wessley 

Jackson, Blake Jackson, and Mark Jackson. Appellants’ App. at 203, 213.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 4 of 18

organized under the laws of the State of Delaware with its principal place of 

business in Indianapolis. J Group owns a 95% ownership interest in Legacy I 

and is classified as a “B Member.” It has contributed 100% of the capital to 

Legacy I, which exceeds $10 million. EGE owns a 5% ownership interest in 

Legacy I and is classified as an “A Member.” EGE has contributed no capital 

to Legacy I, and it is not a party to this lawsuit. Eckard is manager of, and he 

owns and controls, EGE. The Company Agreement named Hameck Oil as 

Manager of Legacy I. Hameck Oil is a limited partnership organized under the 

laws of Texas with its principal place of business in Texas. The Company 

Agreement was signed by three entities: (1) Manager Hameck Oil (Eckard 

signed in his capacity as president of TWE, which is a general partner of 

Hameck Oil); (2) Class A Member EGE (Eckard signed as manager of EGE);

and (3) Class B Member J Group (Ethan Jackson signed as manager of J 

Group). 

[5] On July 28, 2013, Eckard sent an email to representatives of J Group stating 

that Hameck Oil would be resigning as Manager of Legacy I effective August 

15, 2013.4 On November 14, 2013, Plaintiff Bakken Oil was appointed as the 

new Manager of Legacy I. Bakken Oil is a corporation organized under the 

 

4

Section 4.3 of the Company Agreement provides that “[a] Manager may resign at any time in writing 

setting forth the effective date of the resignation and sending it to all Members. The resignation need not be 

accepted in order to be effective.” Appellants’ App. at 36. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 5 of 18

laws of the State of Delaware with its principal place of business in 

Indianapolis. 

The Lawsuit

[6] Plaintiffs filed their complaint on November 1, 2013, amended December 2, 

2013, seeking, initially, preliminary and permanent injunctive relief, namely 

that Defendants be ordered to turn over books, records, and other materials to 

allow for the orderly transition of company business from Hameck Oil to 

Bakken Oil, the new Manager of Legacy I. In addition to naming Eckard and 

Hameck Oil as Defendants, Plaintiffs also named Defendants TWE and Eckard 

Global,

5 which are limited liability companies organized under the laws of 

Texas with principal places of business in Texas. Plaintiffs did not name Class 

A Member EGE as a defendant in the lawsuit. 

[7] The complaint alleges that Hameck Oil, as the Manager of Legacy I, had access 

to and control over the books, records, and accounts of Legacy I and that TWE, 

as the General Partner of Hameck Oil, also had access and control over the 

books and records of Legacy I. The complaint claims that Eckard Global “has 

been used by the other Defendants” to conduct management duties with respect 

to Legacy I and, like the others, had access to the books and records of Legacy 

I. Appellees’ App. at 8. It further asserts that at all material times Eckard 

directed and controlled the actions of the other named Defendants and that 

 

5 Eckard is manager and sole member of Eckard Global. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 6 of 18

Hameck Oil has failed to discharge its responsibilities, refused to cooperate, and 

violated fiduciary duties under the provisions of the Company Agreement. 

Plaintiffs contend in the complaint, “Defendants have routinely ignored and 

manipulated the corporate forms for their own purposes,” including, but not 

limited to, failing to keep corporate records, comingling assets and affairs, and 

misdirecting revenues of Legacy I. Id. at 9-10. 

The Company Agreement’s Arbitration Provisions - Original and Amended

[8] In December 2013, Defendants filed a Motion to Dismiss and a Motion to 

Compel Arbitration pursuant to the Company Agreement. The Motion to 

Dismiss sought dismissal of Defendants Eckard and Eckard Global because 

they did not sign, and were not parties to, the Company Agreement. Appellants’ 

App. at 95, 101. Alternatively, Defendants argued that Plaintiffs’ claims against 

all Defendants should be subject to arbitration. In support of arbitration, 

Defendants relied on Section 13.10 of the Company Agreement, entitled 

“Binding Arbitration,” which provides in part:

Any controversy, claim or dispute between or among the Company 

and any Member or among the Members arising out of or relating to 

this Company Agreement or any other matters pertaining to the 

Company, shall be settled by binding arbitration in Newcastle County, 

Delaware, in accordance with the applicable rules of the American 

Arbitration Association (“AAA”) then in effect. . . . The Members 

expressly agree that the provisions of this Section 13.10 shall be valid 

and enforceable to the greatest extent possible under the laws of the 

United States of America or the State of Delaware. . . . 

Notwithstanding the foregoing, the Company may pursue suit for 

injunctive relief against any Member who violates the Member’s 

covenants in Article 11.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 7 of 18

Appellants’ App. at 48. 

[9] In January 2014, the trial court granted the parties’ joint motion to stay the 

litigation as they pursued settlement negotiations. During the stay, Defendants 

produced additional records for Legacy I, and Plaintiffs claim that this revealed 

that Defendants’ actions caused in excess of $1.7 million in harm to Legacy I 

and J Group. 

[10] On May 7, 2014, Bakken Oil and J Group amended the Company Agreement 

to delete Section 13.10 (the binding arbitration provision).6 The 

amended/replacement section reads: 

All provision [sic] of this Company Agreement relating to or requiring 

arbitration of any controversy, claim, dispute or anything else which 

has to date arisen with respect to, or which in the future may arise or 

relate to this Company Agreement, or to any other matter pertaining 

to the Company, including but not limited to Article 13.10 and Article 

4.10, are deleted and shall have no force or effect whatsoever.

Id. at 204.7 

[11] On May 12, 2014, five days after Plaintiffs’ May 7 amendment to the Company 

Agreement that deleted the arbitration provision, Plaintiffs filed a Motion to 

Lift Stay, which motion the trial court granted on May 13. Also on May 13, 

 

6

Plaintiffs assert that they amended the Company Agreement pursuant to Section 13.6, which permits 

amendment “by the Manager with consent of a Majority of the Members.” Appellees’ App. at 38. 

7 Bakken Oil and J Group also amended the Company Agreement to delete former Section 13.2, which 

stated that Delaware law was the governing law, and replaced it with a new Section 13.2 that provided the 

laws of Indiana shall govern the Company Agreement and all issues, claims, or matters arising under it. 

Appellants’ App. at 204. The amendments also provided that Legacy I “shall wind up.” Id. 
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Plaintiffs sought to file a second amended complaint, but the trial court denied 

the request pending determination of Defendants’ December 2013 Motion to 

Dismiss and Motion to Compel Arbitration. A few days later, on May 16, 

Defendants filed a Renewed Motion to Dismiss and Motion to Compel 

Arbitration. 

[12] On May 22, 2014, Defendants Hameck Oil and EGE filed a complaint in a 

Texas state court against the four individuals that comprise J Group – Ethan 

Jackson, Wessley Jackson, Blake Jackson and Mark Jackson – as well as other 

individuals and entities. The forty-three-page complaint alleges that the 

Jacksons, their attorney and their accountants gained access to confidential and 

propriety information during the formation and operation of Legacy I, 

including access to confidential lease summaries and exclusive and unique 

mapping and trend analysis, and that they used this information to, among 

other things, engage in fraud, misappropriation of confidential trade secrets, 

and unfair competition over a three-year period. They also allege tortious 

interference with the Legacy I Company Agreement and breach of fiduciary 

duties. The lawsuit was subsequently removed to, and is pending in, Federal 

District Court for the Eastern District of Texas. 

Trial Court’s August 14, 2014 Order

[13] The trial court held a hearing on Defendants’ motions on July 23, 2014, at 

which counsel for both parties presented argument. Thereafter, on August 14, 

2014, the trial court denied Defendants’ Motion to Dismiss, finding that 

Plaintiffs did not sue Eckard or Eckard Global strictly in their capacities as 
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-635 |July 22, 2015 Page 9 of 18

signatories to the Company Agreement, but rather because they had access to 

and control over the books and records of Legacy I and that Eckard Global, in 

addition to having access to books and records, had been used by other 

Defendants to conduct management duties with respect to Legacy I. The trial 

court determined that Defendants failed to carry the requisite burden for a 

motion to dismiss and denied it. 

[14] With regard to Defendants’ Motion to Compel Arbitration, the trial court found 

that “[t]he plain terms of the Company Agreement do not provide the Manager 

with a right to arbitrate the dispute before the Court.” Appellants’ App. at 13. 

More specifically, the trial court determined that Section 13.10 regarding 

Binding Arbitration, identifies the Company and the Members as the entities 

that are subject to arbitration, not the Manager. Id. at 14. Having determined 

that the plain terms of the Company Agreement did not provide for arbitration 

of the dispute in this case and denying Defendants’ motion on that basis, the 

trial court declined to address Plaintiffs’ arguments that the Company 

Agreement was amended to remove arbitration provisions and that Defendants 

waived any right to compel arbitration by having filed the Texas lawsuit.

[15] On August 18, 2014, Plaintiffs filed a renewed motion for leave to file a second 

amended complaint that added Legacy I as a named plaintiff and sought 

damages in addition to injunctive relief. Appellees’ App. at 1-2. The trial court 
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granted their request on September 8, 2014.8 Defendants timely filed an

interlocutory appeal9 and, at Defendants’ request, the trial court stayed the 

proceedings pending resolution of this appeal.

Discussion and Decision

[16] Defendants assert that the trial court erred when it denied its Motion to Compel 

Arbitration. We review a trial court’s denial of a motion to compel arbitration 

de novo. Smith Barney v. StoneMor Operating LLC, 953 N.E.2d 554, 557-58 (Ind. 

Ct. App. 2011), aff’d on reh’g, 959 N.E.2d 309 (Ind. Ct. App. 2011); Norwood 

Promotional Prods., Inc. v. Roller, 867 N.E.2d 619, 623 (Ind. Ct. App. 2007), trans. 

denied. A party seeking to compel arbitration must satisfy a two-pronged 

burden of proof. Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 284 (Ind. 

Ct. App. 2004). The party must first demonstrate the existence of an 

enforceable agreement to arbitrate the dispute; second, the party must prove 

that the dispute is the type of claim that the parties agreed to arbitrate. 

Norwood, 867 N.E.2d at 623 (citing Showboat Marina Casino P’ship v. Tonn & 

Blank Constr., 790 N.E.2d 595, 597 (Ind. Ct. App. 2003)). 

[17] When determining whether parties have agreed to arbitrate a dispute, we apply 

ordinary contract principles. Daimler Chrysler, 814 N.E.2d at 285-86. Words 

used in a contract are to be given their usual and common meaning unless, 

 

8 Our reference to “Plaintiffs” throughout this decision includes Legacy I.

9

See Ind. Code § 35-57-2-19(a)(1) (appeal may be taken from order denying application to compel

arbitration); Ind. Appellate Rule 14(D).
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from the contract and the subject matter thereof, it is clear that some other 

meaning was intended. Id. at 285; see also Smith Barney, 953 N.E.2d at 558

(when interpreting arbitration clause, court is to give language of contract its 

plain and ordinary meaning). Every doubt is to be resolved in favor of 

arbitration, and the parties are bound to arbitrate all matters, not explicitly 

excluded, that reasonably fit within the language used. Norwood, 867 N.E.2d at 

623-24 (quotations omitted). However, parties are only bound to arbitrate those 

issues that by clear language they have agreed to arbitrate; arbitration 

agreements will not be extended by construction or implication. Id. Arbitration 

is a matter of contract and a party cannot be required to submit to arbitration 

unless it has agreed to do so. MPACT Constr. Grp., LLC v. Superior Concrete 

Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004). 

[18] Legacy I is a limited liability company organized pursuant to the Delaware 

Limited Liability Company Act. 6 Del. Code § 18-101 et seq. (“the LLC Act”). 

“It is the policy of [the LLC Act] to give the maximum effect to the principle of 

freedom of contract and to the enforceability of limited liability company 

agreements.” 6 Del. Code § 18-1101(b); see also Kuroda v. SPJS Holdings LLC, 

971 A.2d 872, 880 (Del. Ch. 2009) (limited liability companies are creatures of 

contract, and parties have discretion to use LLC agreement to define character 

of company and rights and obligations of parties). 

[19] Turning to the Company Agreement at hand, Defendants argue that the trial 

court erred when it denied Defendants’ Motion to Compel Arbitration because 

Section 13.10 of the Company Agreement is a valid and enforceable arbitration 
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provision that “covers the subject matter of Plaintiffs’ complaint[.]” Appellants’ 

Br. at 4-5. Again, it reads:

Any controversy, claim or dispute between or among the Company 

and any Member or among the Members arising out of or relating to 

this Company Agreement or any other matters pertaining to the 

Company, shall be settled by binding arbitration in Newcastle County, 

Delaware, in accordance with the applicable rules of the American 

Arbitration Association (“AAA”) then in effect. . . . The Members 

expressly agree that the provisions of this Section 13.10 shall be valid 

and enforceable to the greatest extent possible under the laws of the 

United States of America or the State of Delaware. . . . 

Notwithstanding the foregoing, the Company may pursue suit for 

injunctive relief against any Member who violates the Member’s 

covenants in Article 11. The Members will continue to perform their 

respective obligations under this Company Agreement pending the 

final resolution of any dispute, unless to do so would be impossible or 

impractical under the circumstances. 

Appellants’ App. at 48. 

[20] Defendants’ position is that Section 13.10 applies, and arbitration should be 

ordered, because the section provides that it applies to any controversy, claim 

or dispute “arising out of or relating to this Company Agreement or any other matter 

pertaining to the Company” and that Plaintiffs’ claims – alleging that Hameck Oil, 

as Manager, has not and will not turn over the books and records, has breached 

its fiduciary duties, and that it thereby has caused economic damages – clearly 

arise out of or relate to the Company Agreement. Id. (emphasis added). 

Therefore, Defendants contend, the dispute should be settled by arbitration. 

[21] This position, however, overlooks the prior modifying language in Section 

13.10 stating that any controversy, claim or dispute “between or among the 
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Company and any Member or among the Members” shall be settled by arbitration. 

Id. (emphasis added). Other language, appearing later in Section 13.10, 

likewise focuses on the Members, stating, “The Members expressly agree that the 

provisions of this Section 13.10 shall be valid and enforceable to the greatest 

extent possible under the laws of the United States of America or the State of 

Delaware[.]” Id. (emphasis added). The section concludes with the statement 

that, while any arbitration proceeding is pending, “The Members will continue to 

perform their respective obligations under this Company Agreement pending 

the final resolution of any dispute[.]” Id. (emphasis added). In this case, 

Plaintiffs’ claim is against Hameck Oil, former Manager, as well as affiliated 

Defendants Eckard, Eckard Global, and TWE. Section 13.10 does not list or 

identify the Manager as an entity with whom disputes are arbitrable. As with 

any contract, the court must give the language of the contract its plain and 

ordinary meaning, and the parties are only bound to arbitrate those issues that 

by clear language they have agreed to arbitrate. Norwood, 867 N.E.2d at 623-24. 

We agree with the trial court that disputes with the Manager are not within the 

scope of Section 13.10. Had the parties intended to include disputes with the 

Manager in the arbitration provision of 13.10, they could have done so. They 

did not, and we cannot rewrite the arbitration provision to impose new or 

different obligations on the parties.10

 

10 Defendants argue that, in addition to Hameck Oil being able to enforce the arbitration clause, the nonsignatory Defendants Eckard Global, TWE, and Eckard are entitled to enforce the arbitration clause 

pursuant to the doctrine of equitable estoppel given that J Group asserted allegations of interdependent and 
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[22] On appeal, Defendants assert that, even if the Manager is not expressly 

included by the language of Section 13.10, the Company Agreement, when

construed in its entirety, reflects that Manager “Hameck Oil is the Company, 

Member, or both,” based on the fact that Hameck Oil executed the Company 

Agreement beneath the words “the undersigned Members” and also because

the Company Agreement gives such power to the Manager that, not only does 

it act on behalf of the Company, but that the Manager is the Company. 

Appellants’ Br. at 10. 

[23] Plaintiffs assert that this “extraordinary argument” was not made to the trial 

court, and, thus, it is waived. Appellees’ Br. at 17. Regardless of waiver, we are 

not persuaded that, as Defendants’ claim, the Manager is the legal equivalent of 

a Member and/or the Company. The Company Agreement identifies the 

“Company” as Legacy I. Appellants’ App. at 30. It identifies Hameck Oil as the 

Manager. Id. at 36 (“The initial Manager shall be Hameck Oil Company, Ltd., 

a Delaware limited partnership”). The Company Agreement defines a Member 

as “any person who owns units and who has signed the Company Agreement,” 

id. at 31, and Hameck Oil does not own units. Furthermore, the Members are 

specifically identified on the addendum to the Company Agreement as the 

following: (1) J Group, a Class B Member; and (2) EGE, a Class A Member. 

 

concerted misconduct by Defendants. Appellants’ Br. at 5, 14-15. Having determined that the Company 

Agreement does not provide Manager Hameck Oil with a right to compel arbitration, we find that equitable 

estoppel does not apply here, because the non-signatories’ rights to arbitration, if any, would be derivative of 

Hameck Oil’s right. 
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Id. at 51. The Company Agreement assigns various duties and responsibilities

to the Manager. For example, Section 4.1 gives the Manager the power to 

“exclusively exercise the powers of the Company and shall manage the business 

and affairs of the Company,” and that any substantial decisions shall be made 

only by the Manager. Id. at 34. Other sections of the Company Agreement 

outline the Manager’s responsibilities, such as: Section 1.1 (Manager’s 

responsibilities regarding capital accounts); Sections 4.1-4.10 (Manager’s fees 

and responsibilities); Section 6.1(c) (Manager’s ability to request additional 

capital contributions); Sections 9.1-9.5 (Manager’s responsibility regarding 

books and records, tax returns, tax elections, and financial statements); Section 

12.1 (wind up procedures). Id. at 29, 34-37, 37, 42-43, 45. Based on the 

foregoing, we do not accept Defendants’ suggestion that Hameck Oil, as 

Manager, was also a Member and/or the Company. 

[24] Defendants urge that, even if it is determined that disputes with the Manager 

are not included in the language of Section 13.10 and that the Manager is 

neither the Company nor a Member, another section of the Company 

Agreement – Section 4.10 – expressly addresses disputes between the Manager, 

the Company, and the Members and states that such disputes are arbitrable. 

Section 4.10 provides:

The rights, compensation, and ownership of the Manager and its 

Affiliates creates several and various conflicts of interest. The 

Manager has not developed, and does not expect to develop, any 

formal process for resolving conflicts of interest. While the conflicts of 

interest that exist between the Manager, the Company, and the 

Members, and that could later develop, could materially and adversely 
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affect the Members, the Manager, in its sole judgment and discretion, 

will try to mitigate such potential adversity by the exercise of business 

judgment in an attempt to fulfill its fiduciary obligations. There can be 

no assurance that such an attempt will prevent adverse consequences 

resulting from the numerous conflicts of interest. If such conflicts cannot 

be resolved, then the dispute will be resolved by arbitration, pursuant to Section 

13.10 below.

Id. at 37 (emphasis added). We find that the language of the arbitration 

provision in Section 4.10 identifies only a single class of disputes involving the 

Manager that are arbitrable: conflicts of interest. Plaintiffs do not seek 

resolution of a conflict of interest between a Member (or the Company) and the 

Manager, and we find Section 4.10 is not applicable to the present dispute.

[25] Defendants have failed to show that the trial court erred when it determined 

that the plain language of the Company Agreement did not provide Manager 

Hameck Oil with a right to arbitrate the dispute.11 

[26] Affirmed.

Friedlander, J., concurs.

Baker, J., concurs in result with separate opinion.

 

11 Because we resolve this case on the basis that the plain language of the Company Agreement did not give 

Hameck Oil the right to enforce arbitration of the dispute with Plaintiffs, we do not address the effect, if any, 

of Plaintiffs’ May 2014 amendment of the Company Agreement, deleting the arbitration clause language of 

Section 13.10, nor do we reach Plaintiffs’ argument that Defendants waived any right to arbitration by suing 

members of J Group and affiliated individuals in Texas.
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I N T H E

COURT OF APPEALS OF INDIANA

Hameck Oil Company, Ltd., 

TWE Management, LLC, 

Eckard Global, LLC, and Troy 

W. Eckard,

Appellants-Defendants,

v.

J Group Energy I, LLC, Bakken 

Oil & Gas Management, Inc., 

and HOC Bakken Legacy I, 

LLC,

Appellees-Plaintiffs

Court of Appeals Case No.

49A02-1409-PL-635

Baker, Judge, concurring in result.

[27] While I concur in the result reached by the majority, I respectfully part ways 

with the analysis it applies to get there. Specifically, I disagree with the 

majority’s interpretation of the Company Agreement. In my view, it is readily 

apparent that the parties to the contract intended that all disputes related to the 

Company should be submitted to binding arbitration. I concede that the 

drafting of the arbitration provision is somewhat inartful, but I still believe that 

the Company Manager is bound to arbitrate disputes just as Members and the 
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Company are bound. The Manager is a signatory to the contract, and the 

Manager was empowered to—and charged with—acting as the Company and 

conducting its day-to-day business. Furthermore, Section 4.10 of the Company 

Agreement provides that the Manager must abide by certain procedures when a 

conflict of interest arises. If those procedures do not resolve the conflict, then 

the binding arbitration provision governs. The clear import of Section 4.10 is 

that, in all cases except for conflicts of interest, disputes involving the Manager 

are to be submitted to binding arbitration. Consequently, I disagree with the 

majority’s conclusion that disputes involving the Manager are not covered by 

the binding arbitration provision.

[28] Although in my opinion the Defendants had a right to arbitration granted by 

the Company Agreement, I believe that the Defendants waived that right by 

filing a lawsuit related to the Company in Texas. It is well established that a 

contractual right to arbitrate can be waived, and that participation in litigation 

supports a finding of waiver. St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco 

Aluminum Prods. Co., 969 F.2d 585, 587, 589-91 (7th Cir. 1992) (applying 

Indiana law). Here, the Defendants not only participated in litigation, they 

filed their own lawsuit regarding matters that, on their face, arise out of or 

relate to the Company and the Company Agreement. The Defendants cannot 

have it both ways, and by instituting litigation, they waived their right to 

enforce the binding arbitration provision in the lawsuit filed by the Plaintiffs. 

As a result, I agree with the majority that the trial court’s judgment should be 

affirmed.