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 APPELLANT: ATTORNEYS FOR APPELLEES:

CYNTHIA S. GILLARD GREGORY P. RIPPLE

ANDREW M. HICKS Miller Johnson

Warrick & Boyn, LLP Grand Rapids, Michigan

Elkhart, Indiana

MICHELLE L. QUIGLEY

Miller Johnson

Kalamazoo, Michigan

IN THE

COURT OF APPEALS OF INDIANA

GARRY BALTHES, )

)

Appellant, )

)

vs. ) No. 20A03-1111-CC-517

)

CONCEPT INDUSTRIES, INC., )

COMPOSITE TECHNOLOGIES, LLC, )

and SHAWN ESHRAGH, )

)

Appellees. )

APPEAL FROM THE ELKHART CIRCUIT COURT

The Honorable Terry C. Shewmaker, Judge

Cause No. 20C01-1009-CC-202 

July 17, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
2

Garry Balthes appeals the trial court’s order entering summary judgment in favor 

of Concept Industries, Inc. (“Concept”), Composite Technologies, LLC (“Composite”), 

and Shawn Eshragh (Concept and Composite together, “Companies,” and Companies and 

Eshragh together, “Appellees”) and against Balthes. Balthes raises two issues, which we 

consolidate and restate as whether the court erred in entering summary judgment in favor 

of Appellees. We affirm in part, reverse in part, and remand. 

The relevant facts follow. Concept manufactures returnable packaging systems, 

vacuum formed plastics and non-woven fiber products for the automotive, office 

furniture and other industries. Composite performs research development services for 

Concept. Companies are located in Grand Rapids, Michigan. Eshragh was the president 

of Concept, David Ellis was the vice-president of Concept, and David Foote was the chief 

financial officer of Concept. 

In March 2007, Balthes entered into a consulting relationship with Companies and 

subsequently in 2007 accepted an offer of employment from Companies. Balthes’s 

employment with Companies required him to relocate his personal residence from 

Elkhart County, Indiana, to Kent County, Michigan. In September 2007, to assist in the 

relocation, Eshragh paid $34,500 to Balthes to be used as a down payment on a new 

house in Kent County. Companies paid an additional total amount of $17,752 in the form 

of mortgage payments on Balthes’s behalf on his residence in Elkhart County. 

Balthes resigned his employment effective March 31, 2010, and Appellees 

demanded repayment of the above amounts. Balthes and Appellees entered into a written 

settlement agreement dated in June 2010 (the “2010 Settlement Agreement”) which 
3

provided that the total amount loaned to Balthes by Appellees, with accrued interest,

exceeded $57,000 and that Balthes would pay Concept a total gross amount of $50,000 in 

two installments. The 2010 Settlement Agreement provided that the first installment 

payment would be $40,000 payable within ten days of the closing of the sale of Balthes’s 

residence in Michigan or by July 15, 2010, whichever date occurred first, and the second 

installment payment would be for $10,000 payable by December 31, 2010. The 2010 

Settlement Agreement also included certain non-competition and non-solicitation 

provisions, a provision providing that Appellees would release and discharge Balthes for 

all claims related to the loaned amounts in consideration of the payments, and that the 

agreement would be governed by the laws of the State of Michigan. 

On or about July 15, 2010, Eshragh received a letter from Balthes accompanied by

a personal check for $5,000. In the letter, Balthes stated in part that he was hoping to 

repay the full balance via a bank loan and that it was not his intention to drag out the 

repayment. 

On September 8, 2010, Appellees filed a complaint in the Elkhart County Circuit 

Court in which Concept alleged breach of contract against Balthes and Appellees alleged 

unjust enrichment against him. On October 28, 2010, Balthes, pro se, filed an answer in 

which he asserted affirmative defenses and requested a trial by jury. On February 21, 

2011, Appellees filed a motion for leave to amend complaint to include an allegation that 

Balthes failed to make the second installment payment due on December 31, 2010 under 

the 2010 Settlement Agreement, and the court granted Appellees’ motion and ordered the 

amended complaint to be deemed filed. On April 26, 2011, Appellees filed a motion for 
4

default judgment, and on April 29, 2011, Balthes filed a response to the motion for 

default and an answer to the amended complaint.1 

On May 6, 2011, while the motion for default was pending, Eshragh and Ellis met 

with Balthes to discuss the possibility of Balthes performing some consulting work for 

Concept in exchange for Appellees’ dismissal of the pending lawsuit. Balthes visited 

Concept’s facility on May 10, 2011, and there was some additional communication 

between Balthes and Eshragh, Ellis, and the parties’ attorneys during the following days. 

On May 16, 2011, Appellees filed a notice of withdrawal of their motion for default 

judgment, and the court ordered that the motion for default be withdrawn and Balthes’s 

answer to the amended complaint be filed. 

On June 29, 2011, Appellees filed a motion for summary judgment as to each 

claim asserted in their amended complaint, designating evidence together with a brief in 

support of the motion.

2

 Appellees argued that under Michigan law it is undisputed that 

Balthes breached the 2010 Settlement Agreement and that Balthes has been unjustly 

enriched by receiving a benefit from Appellees that he has retained. On July 27, 2011, 

Balthes, pro se, filed a memorandum of law in opposition to Appellees’ motion for 

 

1

In his response to Appellees’ motion for default, Balthes stated that prior to filing their amended 

complaint Appellees asked for his consent to the motion to file the amended complaint and informed him 

that even if he did not oppose the amendment, he would still have the opportunity to answer and defend 

the complaint, and that from discussion with Appellees’ counsel and given that the only reason for 

amending the complaint was to change the amount of money Appellees sought, he was under the 

impression that he did not have to file another answer. 

2

In support of their motion, Appellees designated among other things the affidavits of Eshragh 

and Foote. 
5

summary judgment and requested that summary judgment be granted in his favor.3 

Balthes argued that the parties reached a valid modification of the 2010 Settlement 

Agreement on May 6, 2011 which precluded summary judgment, that an oral agreement 

on May 6, 2011 was a valid and enforceable settlement agreement, and that the oral 

agreement was not barred by the statute of frauds. Balthes also argued that oral promises 

may be enforced under the doctrine of promissory estoppel and equitable estoppel, that 

part performance may render an oral agreement enforceable under the statute of frauds, 

and that “[a]ll of these factors are present in this case.” Appellant’s Appendix at 77. On 

August 26, 2011, Appellees filed a response and argued that, while the parties did engage 

in negotiations in an effort to come to a settlement agreement, the parties never reached a 

final agreement that would modify, alter, or discharge Balthes’s duties under the 2010 

Settlement Agreement, and that Balthes’s summary judgment motion should be 

dismissed.4 

Following a hearing, the court issued an order entering summary judgment in 

favor of Appellees and against Balthes. The court found that at the hearing the parties 

agreed that they had entered the 2010 Settlement Agreement and that Balthes had paid 

only $5,000, leaving a balance due of $45,000, and that, accordingly, it is undisputed that 

the parties entered into a valid contract which Balthes ultimately breached. The court 

 

3

In his memorandum, Balthes designated his affidavit, in addition to other pleadings and the 

evidence by Appellees. 

4

In their response to Balthes’s motion for summary judgment, Appellees designated the 

pleadings in the case, the materials designated in their motion for summary judgment, the supplemental 

affidavit of Eshragh, the affidavits of Ellis and Gregory Ripple, counsel representing Appellees, and the 

exhibits attached to those affidavits. 
6

stated that Balthes argued that on May 6, 2011, the parties orally modified the 2010 

Settlement Agreement, and the court found in part: 

The designated evidence establishes that the parties did engage in 

negotiations in an attempt to come to a resolution regarding Balthes’s 

breach of the [2010] Settlement Agreement; however, there was never an 

agreement subsequent to the original agreement that modified or discharged 

[Balthes’s] original obligation. [Appellees] concede that they met with [] 

Balthes on May 6, 2011 to discuss the possibility of Balthes providing 

consulting services in exchange for dismissing the lawsuit. In the days 

following the parties’ negotiations, several proposals for a revised 

settlement agreement were presented; however, all were rejected by one or 

both of the parties. On June 2, 2011, Balthes rejected the final proposed 

agreement. No further negations ensued. 

Id. at 9 (citations to record omitted). The court further found: 

In the instant case, the designated evidence shows that the parties engaged 

in negotiations in an effort to come to a subsequent settlement agreement; 

however, the evidence also establishes that they never reached a final 

agreement as to the essential terms of that proposed agreement. Therefore, 

no subsequent contractual agreement to discharge or modify [Balthes’s] 

obligations under the [2010] Settlement Agreement was ever reached. The 

facts and evidence regarding [Balthes’s] breach of the Settlement 

Agreement is undisputed. Accordingly, summary judgment in favor of 

[Appellees] is appropriate upon the amount due under the [2010] 

Settlement Agreement. 

Id. at 10. The court entered judgment in favor of Appellees and against Balthes in the 

amount of $45,000. 

The issue is whether the trial court erred in entering summary judgment in favor of 

Appellees and against Balthes. Summary judgment is appropriate only where there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of 

law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 

N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts 

are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a 
7

summary judgment motion is limited to those materials designated to the trial court. Id. 

We must carefully review a decision on summary judgment to ensure that a party was not 

improperly denied its day in court. Id. at 974. Any doubt as to the existence of an issue 

of material fact, or an inference to be drawn from the facts, must be resolved in favor of 

the nonmoving party. Cowe v. Forum Grp., Inc., 575 N.E.2d 630, 633 (Ind. 1991). 

A party moving for summary judgment bears the initial burden of showing no 

genuine issue of material fact and the appropriateness of judgment as a matter of law. 

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005). If the 

movant fails to make this prima facie showing, then summary judgment is precluded 

regardless of whether the non-movant designates facts and evidence in response to the 

movant’s motion. Id. In reviewing a trial court’s ruling on a motion for summary

judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 

materials. Catt v. Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). 

The fact that the parties make cross motions for summary judgment does not alter 

our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 

291 (Ind. Ct. App. 1997), trans. denied. Instead, we must consider each motion 

separately to determine whether the moving party is entitled to judgment as a matter of 

law. Id. The entry of specific findings and conclusions does not alter the nature of a 

summary judgment which is a judgment entered when there are no genuine issues of 

material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the 

summary judgment context, we are not bound by the trial court’s specific findings of fact 
8

and conclusions of law. Id. They merely aid our review by providing us with a statement

of reasons for the trial court’s actions. Id.

Before we address Balthes’s arguments, we note that the parties disagree as to the 

substantive law which applies to this case. Appellees argue that the parties contractually 

agreed that Michigan law would govern the interpretation of the 2010 Settlement 

Agreement and that Indiana choice of law doctrine favors contractual stipulations as to 

governing law. Balthes argues that the application of Indiana law to the May 6, 2011 

settlement of a case pending in Indiana is reasonable under the “most intimate contacts” 

rule. Appellant’s Reply Brief at 7. In support of his argument, Balthes points to the facts 

that the lawsuit is in Indiana, that he was a resident of Indiana, and that some of the 

services he would provide would be completed at his home in Indiana. 

Choosing the appropriate state substantive law is a decision to be made by the 

court of the state in which the action is pending. Kentucky Nat. Ins. Co. v. Empire Fire 

and Marine Ins. Co., 919 N.E.2d 565, 575 (Ind. Ct. App. 2010) (citing Travelers Ins. Co. 

v. Rogers, 579 N.E.2d 1328, 1330 (Ind. Ct. App. 1991)). Accordingly, Indiana’s choice 

of law rules apply to this case. Indiana choice of law provisions generally favor 

contractual stipulations as to governing law. Id. (citing Allen v. Great Am. Reserve Ins. 

Co., 766 N.E.2d 1157, 1162 (Ind. 2002)). 

Indiana’s choice of law rule for contract actions is the “most intimate contacts” 

test. Id. (citing Schaffert by Schaffert v. Jackson Nat’l Life Ins. Co., 687 N.E.2d 230, 

232 (Ind. Ct. App. 1997) (citations omitted), trans. denied). The court will consider all 

acts of the parties touching the transaction in relation to the several states involved and 
9

will apply as the law governing the transaction the law of that state with which the facts 

are in most intimate contact. Id. (citing Hartford Acc. & Indem. Co. v. Dana Corp., 690 

N.E.2d 285, 291 (Ind. Ct. App. 1997) (citing W.H. Barber Co. v. Hughes, 223 Ind. 570, 

63 N.E.2d 417, 423 (1945)), trans. denied). The following are representative of the 

factors to consider: (1) the place of contracting, (2) the place of negotiation, (3) the place 

of performance, (4) the location of the subject matter of the contract, and (5) the 

domicile, residence, nationality, place of incorporation and place of business of the 

parties. Id. (citing Emp’rs Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 

1024 (Ind. Ct. App. 1999) (citing Eby v. York-Div., Borg-Warner, 455 N.E.2d 623, 626 

(Ind. Ct. App. 1983) (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188 

(1971))), reh’g denied, trans. denied). The location of the subject matter of the contract, 

also known as the principal location of the insured risk, is given greater weight than any 

other single contact in determining the state of the applicable law when that risk can be 

located principally in a single state. Id. It is also accorded greater significance when the

other factors do not point primarily to one forum. Id.

However, a court need only undergo the analysis above if there is a difference 

between the relevant laws of the different states. Id. (citing Hartford Acc. & Indem. Co.,

690 N.E.2d at 291 (“[B]efore entangling itself in messy issues of conflict of laws a court 

ought to satisfy itself that there actually is a difference between the relevant laws of the 

different states.”) (citing Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 197 

(7th Cir. 1992), cert. denied, 506 U.S. 1001, 113 S. Ct. 605 (1992))). “If the purposes 

and policies of two potential rules are the same, the forum should apply the forum law.” 
10

Id.; see also Simon v. U.S., 805 N.E.2d 798, 805 (Ind. 2004) (noting that because there 

was a conflict between the laws of Indiana and Pennsylvania that was “important enough 

to affect the outcome of the litigation,” the Court needed to determine which State’s law 

to apply). In addition, the Indiana Supreme Court has held that Indiana does not engage 

in dépeçage, which is “the process of analyzing different issues within the same case 

separately under the laws of different states.” Simon, 805 N.E.2d at 801. “Although 

Indiana allows different claims to be analyzed separately, it does not allow issues within 

those counts to be analyzed separately.” Id. (“For example, an Indiana court might 

analyze a contract claim and a tort claim independently but would not separately analyze 

and apply the law of different jurisdictions to issues within each claim.”). 

Here, we observe that, to the extent Appellees initiated this lawsuit and alleged in 

their complaint and amended complaint that Balthes was in breach of the 2010 Settlement 

Agreement, the 2010 Settlement Agreement contained a provision providing that it would 

“be governed and construed in accordance with the domestic law of the State of Michigan 

without giving effect to any choice of law or conflict of law provision (whether of the 

State of Michigan or any other jurisdiction) that would cause the application of the laws 

of any jurisdiction other than the State of Michigan.” Appellant’s Appendix at 30. 

Further, to the extent that Balthes argues that Indiana law may apply under the “most 

intimate contacts” rule to consideration of the agreement he asserts the parties reached at 

the May 6, 2011 meeting, we conclude that we need not undergo such an analysis 

because, as set forth below, there are no differences between the relevant laws of 

Michigan and Indiana as to the requirements of contract formation or promissory estoppel 
11

that affect the outcome of the litigation in this case. See Dunn v. Meridian Mut. Ins. Co.,

836 N.E.2d 249, 251 (Ind. 2005) (noting that the relevant laws of two states appeared to 

be the same and setting forth the relevant laws in both states). 

We turn now to Balthes’s arguments regarding the court’s summary judgment 

ruling. Balthes contends that that he and Appellees reached an oral agreement on May 6, 

2011 to settle the lawsuit and that, as a result, Appellees should be compelled to abide by 

its terms. Balthes argues that Appellees held out to him that, if he agreed to help improve 

production lines 5, 7, and 8, they would dismiss their lawsuit, that he and Eshragh shook 

hands to consummate the contract, and that this exchange established an oral contract 

settling the lawsuit. Balthes further argues that there was a clear meeting of the minds 

shown by Eshragh’s statements that Concept needed Balthes’s services immediately and 

his statement to Foote to instruct legal counsel to dismiss the suit; that Balthes’s 

immediate actions and his working with Ellis to develop a task list were in line with what 

his obligations were under the May agreement; and that the parties’ conduct after May 6, 

2011 demonstrates that an oral contract was formed, including that he went to work 

immediately, that he had several conversations with Eshragh and Concept and spent May 

10, 2011 on-site addressing production problems, and that during that time he diagnosed 

problems and recommended steps to improve production. 

Balthes also argues: “Concept was a happy customer and [had] an improved 

production line. The immediate fixes were completed. They had what they needed. It 

was then that they told [Balthes] not to come again until he signed their written 

agreement, and then issued their proposed written terms to [Balthes] to tie up loose legal 
12

ends” and that “[t]he written terms went well beyond the scope of what the parties agreed 

to on May 6.” Appellant’s Brief at 13-14. Balthes also argues that the May 6, 2011 oral 

agreement is enforceable even if it omitted certain details or failed to specify a definite 

time for performance and that the agreement did specify a definite scope of services. 

Balthes further contends that his reliance on Appellees’ numerous representations that an 

agreement was reached estops them from denying the existence of the May 6, 2011 

agreement. Balthes asserts that “[e]very action [Appellees] took toward [him] was 

designed to induce [him] to rely on their promises,” that he “was assured numerous times 

that they had reached a deal,” and that “[f]rom May 6 through May 10, [he] was in 

constant contact with [Appellees] and was either talking with them about work or his 

wife’s health.” Id. at 19. Balthes also argues, in the alternative, that genuine issues of 

material fact as to the existence and terms of the May 2011 agreement preclude summary 

judgment in favor of Appellees. 

Appellees maintain that it is undisputed that Balthes breached the 2010 Settlement 

Agreement and that the court correctly concluded that the parties did not reach an 

agreement in May 2011 that would modify, alter or discharge Balthes’s duties under the 

2010 Settlement Agreement. Appellees assert that the parties engaged in negotiations but 

never reached a binding agreement. Appellees further argue Balthes cannot establish the 

elements necessary to prevail on a theory of promissory estoppel. In his reply brief, 

Balthes argues that he was not advised on May 6, 2011 that the verbal agreement settling 

the lawsuit was contingent upon additional and onerous terms to be included in a 

subsequent written settlement agreement, that his affidavit in the designated evidence is 
13

not self serving and can defeat summary judgment, that he relies upon other designated 

evidence as well as his affidavit, that the existence of a contract is a question of fact, and 

that he can establish the elements necessary to prevail on a theory of promissory estoppel. 

Under Michigan law, a valid contract requires mutual assent on all essential terms. 

Eerdmans v. Maki, 573 N.W.2d 329, 332 (Mich. Ct. App. 1997). Mere discussions and 

negotiation cannot be a substitute for the formal requirements of a contract. Id. Before a 

contract can be completed, there must be an offer and acceptance. Id. Acceptance must 

be unambiguous and in strict conformance with the offer. Id. A meeting of the minds is 

judged by an objective standard, looking to the express words of the parties and their 

visible acts, not their subjective states of mind. Kloian v. Domino’s Pizza, LLC, 733 

N.W.2d 766, 771 (Mich. Ct. App. 2006). An offer is a unilateral declaration of intention, 

and is not a contract. Kamalnath v. Mercy Memorial Hosp. Corp., 487 N.W.2d 499, 

503 (Mich. Ct. App. 1992). A contract is made when both parties have executed or 

accepted it, and not before. Id. A counter proposition is not an acceptance. Id. Mere 

discussions and negotiation, including unaccepted offers, cannot be a substitute for the 

formal requirements of a contract. Id. “In an appropriate case an agreement may be 

enforced as a contract even though incomplete or indefinite in the expression of some 

term, if it is established that the parties intended to be bound by the agreement, 

particularly where one or another of the parties has rendered part or full performance.” 

JW Knapp Co. v. Sinas, 172 N.W.2d 867 (Mich. Ct. App. 1969). 

Under Indiana law, the basic requirements for a contract are offer, acceptance, 

consideration, and a meeting of the minds between the contracting parties on all essential 
14

elements or terms of the transaction. Fiederlein v. Boutselis, 952 N.E.2d 847, 856 (Ind.

Ct. App. 2011). There must be mutual assent or a meeting of the minds on all essential 

elements or terms in order to form a binding contract. Bennett v. Broderick, 858 N.E.2d 

1044, 1048 (Ind. Ct. App. 2006), trans. denied. To be valid and enforceable, a contract 

must be reasonably definite and certain. Conwell v. Gray Loon Outdoor Mktg. Grp., 

Inc., 906 N.E.2d 805, 813 (Ind. 2009); Wenning v. Calhoun, 827 N.E.2d 627, 629 (Ind.

Ct. App. 2005) (“In order to be enforceable, a contract must be reasonably definite and 

certain in its material terms so that the intention of the parties may be ascertained.”), 

trans. denied. Further, “[t]he law is well established that a mere agreement to agree at 

some future time is not enforceable.” Wolvos v. Meyer, 668 N.E.2d 671, 674 (Ind. 

1996); see also Block v. Magura, 949 N.E.2d 1261, 1266 (Ind. Ct. App. 2011). While 

parties may make an enforceable contract which obligates them to execute a subsequent 

final written agreement, it is necessary that the agreement was expressed on all essential 

terms to be incorporated in the document and that the document is understood to be a 

mere memorial of the agreement already reached. Id. at 674-675 (citing 1 ARTHUR 

LINTON CORBIN AND JOSEPH M. PERILLO, CORBIN ON CONTRACTS § 2.8 at 133-34 (rev. 

ed. 1993)). We consider the parties’ “intent to be bound” as a question separate from but 

related to the definiteness of terms. Block, 949 N.E.2d at 1266. 

The designated evidence reveals a number of affidavits, e-mail messages, and 

other documents related to the 2010 Settlement Agreement, the May 6, 2011 meeting, 

and the parties’ correspondence and negotiations after the May 6, 2011 meeting. In his 

affidavit, Foote stated that it was among his duties to track the loan payments to Balthes 
15

and calculate the amount accruing on the loans, that as of April 30, 2010 Balthes owed a 

total of $57,544.54, that Balthes voluntarily resigned his employment effective March 31, 

2010, that Balthes subsequently signed an agreement promising to pay back $50,000 in 

two payments, and that Balthes made one payment of $5,000 and has failed to make any 

subsequent payments. In his affidavit, Eshragh stated that in 2010 Balthes and Appellees 

reached an agreement to repay the amounts he owed and that he received a sole payment 

from Balthes for $5,000. 

In his affidavit, Balthes stated that he signed the 2010 Settlement Agreement on 

the belief that he would receive a loan to make the payments to Concept stated in the 

agreement upon the sale of his house in Michigan, that he did not receive sufficient funds 

from the sale and was unable to get a loan to make the payments under the agreement, 

and that he made a payment of $5,000. Balthes stated that in February 2011 he learned 

that his wife had cancer, that he advised counsel for Appellees of this fact and of the need 

for his resources to be used for her medical necessities, and that in response Appellees 

asked to have a meeting. Balthes stated that on or about May 6, 2011, he drove from 

Elkhart and met with Ellis, Foote, and Eshragh in Grand Rapids, Michigan, that at the 

meeting he was advised that Appellees would like to find a way to use his expertise in 

helping Concept get various production lines functioning better or just functioning, that 

Concept specifically needed help with lines 7 and 8 so they could get these lines 

operational enough to run cotton shoddy, and that Concept also needed help with line 5. 

Balthes stated that Ellis described in detail what Appellees needed him to do to help 

Concept to improve the production lines, namely, that Appellees needed help with lines 
16

5, 7 and 8, that Ellis later suggested they may need help with lines 2 and 3, and that 

Balthes was agreeable to helping Appellees with production lines 5, 7, and 8 as outlined 

by Ellis, knowing that the lawsuit and claims were being dropped as stated by Eshragh. 

Balthes also stated that Eshragh then restated that based on Balthes’s offer to help 

Appellees, Eshragh would fully drop the suit and the claims for money owing, that 

Eshragh instructed Foote to notify their lawyer to notify the courts that claims were being 

dropped, and that he stood up and shook Eshragh’s hand accepting the agreement. 

Balthes stated that Eshragh took him on a tour of a building, stated that he was happy the 

lawsuit was over and that they had reached an agreement, and that the two again shook 

hands. Balthes stated that the following day, Eshragh called him to tell him again how 

relieved he was that the suit was over and that Eshragh called him a couple more times 

after that to talk about general things and how his wife was doing. 

Balthes’s affidavit further stated that, in reliance upon the agreement the parties 

reached on May 6, 2011, he returned the following Tuesday to start work, that he met 

briefly with Eshragh, Foote, and Ellis, and that Foote thought it would be a good idea to 

put the parties’ agreement in writing and said he would send something to Balthes to 

review. Balthes stated that he met with the production manager and some production 

staff to begin his work and review and evaluate the performance of lines 7 and 8, that he 

evaluated the line issues people were having, that the production team was happy he was 

there and able to help, that he and the others reviewed basic fixes that Concept needed to 

do to improve line performance, and that he made major suggestions for changes to lines 

7 and 8 that were implemented by Concept almost immediately. Balthes stated that he 
17

returned to the office with Ellis and the production team, that Eshragh wanted to make 

sure that the Concept staff were following Balthes’s recommendations, and that they set 

up a program for repairs scheduled to begin that Friday and Saturday with a follow-up 

trip scheduled for the following week. Balthes stated that, as he left, Eshragh walked him 

to the door and restated his position that the suit was forever gone and that he was very 

glad he was there helping Concept, that they again shook hands, and that Eshragh called 

him several times after that to confer. Balthes stated that around May 13, 2011, after he 

had provided his expertise to Appellees, Ellis advised that Balthes should not come up 

and do further work until a written agreement was in place and that the written agreement 

that was presented to him was not representative of what the parties had agreed to in the 

meeting on May 6, 2011, and included material terms that had not been discussed or 

agreed to and had not been signed. 

In his supplemental affidavit, Eshragh stated that Concept had been prepared to 

hire a consulting firm to help improve the production and operation of its carding lines, 

that he knew that Balthes could also provide these services, and that he asked his attorney 

to reach out to Balthes to see if it was worth exploring this settlement avenue. Eshragh 

stated that he met with Balthes on May 6, 2011, to discuss the possibility of him 

performing some consulting work for Concept in exchange for dismissal of its lawsuit 

and that Ellis explained the company’s needs to Balthes. Eshragh stated that, while 

Balthes was agreeable to performing the work, there were details to be worked out, 

including the scope and amount of work to be performed and Balthes’s obligations under 

non-competition agreements with both Concept and another company. Eshragh further 
18

stated that following the meeting the attorneys for both sides exchanged various 

proposals, that he remembered that the issues discussed centered around the scope of

services and the terms of restrictive covenants, that Balthes rejected Appellees’ proposal 

and likewise Balthes’s proposal was unacceptable to Appellees, and that the parties were 

unable to reach an agreement. Eshragh also stated that on May 24 he had another 

telephone conversation with Balthes in a final attempt to work out the differences and 

reach an agreement, that based on that conversation he instructed his attorney to revise 

Appellees’ settlement proposal and forward it to Balthes for his review, that Balthes 

rejected Appellees’ final offer on June 2, 2011, and that there were no further 

negotiations since that date. 

In his affidavit, Ellis stated that during the May 6, 2011 meeting, he explained the 

services Concept needed Balthes to provide and that he and Balthes exchanged ideas at 

the meeting of possible improvement to Concept’s carding lines. Ellis stated that no 

agreement was reached regarding the number of consulting hours Balthes would provide 

or the scope of his services. Ellis stated that on May 9, 2011, in anticipation of the 

parties reaching an agreement, he generated a task list for Balthes and proposed schedule, 

that Balthes suggested that he visit Concept’s plant on May 10, 2011 to observe the 

operation, that Ellis confirmed in an e-mail to Balthes that the remainder of the 

consulting would have to wait because the parties were still “closing the loop” on the 

settlement agreement, and that Balthes nevertheless still visited Concept’s facility on 

May 10. Appellant’s Appendix at 95. Ellis further stated that on May 12, 2011, he sent 

Balthes an e-mail stating that until the legal agreement had been signed he should not 
19

visit the facility, that Balthes agreed and stated that he hoped the parties could reach an 

agreement by that Friday, and that on May 19, 2011, Ellis received an e-mail from 

Balthes regarding scheduling a visit to Concept’s plant in which Balthes wrote that “[i]n 

case the legal issues get resolved this week wanted to let you know next week I only have 

Tuesday open.” Id. at 96. 

The designated evidence includes the May 9, May 12, and May 19, 2011, e-mail 

messages referenced in Ellis’s affidavit. In the Monday, May 9, 2011 e-mail message, 

Ellis wrote in part that “Tuesday is a good fit,” that “[w]e will be running Cotton Shoddy 

on 7 & 8 and it will give you a good chance to see the baseline of where the machine is 

performing as well as see the raw material we are running and issues it is presenting,” 

that “[f]rom there we can map out a plan for how to dial in the process and equipment,” 

and “[t]here was some talk in our meeting about closing the loop on some legal stuff - I’ll 

leave that to [Eshragh] and [] Foote. Let’s you and I concentrate on generating a task list 

and a work schedule to get it done,” and “Give me a call on my cell and let me know 

what time you plan on arriving Tuesday and how long you can stay and we’ll get 

started.” Id. at 97. On May 12, 2011, Ellis wrote to Balthes and stated that Foote let him 

know that he is “still working through the details of your agreement with [Eshragh],” that 

“[i]t probably makes sense to hold off your next visit until this is done,” and that “[w]e 

are making the adjustment we discussed on Tuesday and our ship schedule has been 

pushed out a little, so hopefully you guys get the legal end wrapped up without too much 

impact to the overall schedule.” Id. at 98. Balthes sent a reply e-mail on May 12, 2011 

stating in part: “I hope it’s done today or at least by Friday.” Id. 
20

In his affidavit, Ripple stated that he represented Appellees in the lawsuit, that on 

May 6, 2011, Balthes met with Eshragh and other representatives of Concept and that 

Eshragh informed Ripple that Balthes had agreed in principle to exchange consulting 

services for a dismissal of the lawsuit pending the negotiation and execution of a 

settlement agreement. Ripple stated that on May 11, 2011, he sent a draft settlement 

agreement to Balthes containing Appellees’ original offer to settle, that the same day 

Balthes notified him that changes needed to be made before he could agree to it, 

particularly with respect to the non-competition and non-solicitation language in the 

agreement, and that Balthes suggested revisions to the language. Ripple stated that, on 

May 12, 2011, after consultation with Appellees, he sent an e-mail to Balthes indicating 

that Appellees considered Balthes’s changes to the restrictive covenant to be a “potential 

deal-breaker,” that he received no response to that e-mail message but had a conversation 

with the attorney who had represented Balthes in negotiating the 2010 Settlement 

Agreement, and that Balthes’s attorney reiterated Balthes’s concerns regarding the 

covenants and the scope of services. Ripple stated that on May 19, 2011, counsel for 

Balthes informed him that he would be providing a revised settlement agreement the 

following day and that on May 20, 2011, Balthes’s counsel forwarded a “red-line” 

version of the settlement agreement that incorporated Balthes’s revised changes to the 

agreement. Id. at 101. Ripple stated that on May 21, 2011, he responded and 

communicated Appellees’ rejection of the May 20 proposal and that Appellees countered 

by stating that their original May 11 offer remained on the table until May 23, 2011. 

Ripple further stated that on May 24, 2011, Balthes and Eshragh discussed the settlement 
21

agreement by telephone, that Ripple forwarded to Balthes that same day a revised 

settlement agreement incorporating the changes discussed on the phone, that the new 

revised agreement more clearly provided the scope of the project and Balthes’s duties and 

clarifications regarding travel and supplies, and that later that day Balthes informed 

Ripple that he “did not commit” to any of the changes in the May 24, 2011 revised 

settlement agreement and that his attorney would need to review the proposal. Ripple 

stated that on June 2, 2011, he spoke with Balthes’s counsel regarding the proposed May 

24, 2011 agreement, that Balthes’s counsel stated unequivocally that the “offer was 

rejected” and that Balthes could not agree to the scope of services to be provided, the 

restrictive covenants, and Concept’s proposed remedies in case of default. Id. at 101. 

Ripple finally stated that following Balthes’s rejection of Appellees’ May 24, 2011 

proposal, neither Balthes nor Appellees have made subsequent settlement offers and that 

Balthes has not at any time agreed to the proposed settlement agreement provided to him. 

The designated evidence includes the May 11, May 12, May 20, May 21, and May 

24, 2011, e-mail messages referenced in Ripple’s affidavit. The May 11, 2011 e-mail 

exchange shows that Ripple sent Balthes drafts of the settlement documents and that 

Balthes informed Ripple that changes were required, that he had a long history of 

working in the industry and that “[t]he restrictive provisions in the agreement basically 

kills any chance for me to continue working and earn and [sic] income” and that he could 

not work “under these conditions and these provision[s] will need to be changed.” Id. at

103. In an e-mail message on May 12, 2011 from Ripple to Balthes, Ripple explained 

that the restrictive covenant language in section 6 of the draft agreement and 
22

confidentiality provisions in section 7 are “very important to [Eshragh] and Concept,” 

that the language in the draft “contains the exact same restrictions and provisions that 

were included in the first [2010] Settlement Agreement you signed,” that “[s]ince that 

Agreement is still in full force and effect, you are already bound by that language,” and 

that Eshragh had asked Ripple to relate to Balthes that “this is a potential deal-breaker” 

and that he felt “strongly about this issue.” Id. at 105. 

The red-line version of the draft agreement forwarded by Balthes’s counsel to 

Ripple on May 20, 2011 referenced in Ripple’s affidavit is also included in the 

designated evidence. The red-line version highlighted the text of the language which 

Balthes desired to revise. Balthes’s revisions included changes to the description of the 

consulting services to be provided by Balthes, including language related to which party 

would be responsible for certain expenses, the hours, time commitment, and location of 

Balthes’s work, and the areas of his support, namely, to improve web performance related 

to lines 7 and 8, finalize systems for line 5, and requirements for reassembly for lines 2 

and 3. Balthes’s revisions also included changes to section 6 of the draft agreement 

related to non-competition and non-solicitation. 

Ripple sent an e-mail message to Balthes and his attorney on May 21, 2011, 

stating that the revised terms of the revised settlement agreement were not acceptable to 

Concept, that they fundamentally change the nature of the parties’ agreement, that the 

2010 Settlement Agreement contained the non-competition and non-solicitation language 

originally proposed by Concept in the draft agreement, that Balthes is already bound by 

those restrictions, that Concept has no interest in relitigating another breach of another 
23

settlement agreement if Balthes were to breach, that Concept is prepared to file a motion 

for summary judgment, and that Concept remained willing to settle on the terms initially 

proposed and that the offer would remain open until May 23, 2011. The May 24, 2011 email message from Ripple to Balthes, his attorney, and Foote attached further revised 

draft settlement paperwork incorporating certain changes that Balthes discussed with 

Estragh earlier that day, including changes related to the scope of work and how it is 

measured and scope of duties and clarifications regarding travel and supplies. 

The designated evidence reveals that, despite the fact that Balthes and Eshragh 

shook hands and Eshragh stated his intent to have Appellees’ lawsuit dismissed, there 

was not a meeting of the minds or mutual assent regarding the terms of such an 

agreement and that the terms of the agreement were being discussed and negotiated 

following the May 6, 2011 meeting and were never finalized or concluded. See Wolvos, 

668 N.E.2d at 674 (holding that a mere agreement to agree at some future time is not 

enforceable); Conwell, 906 N.E.2d at 813 (providing that to be valid and enforceable a 

contract must be reasonably definite and certain). As set forth above, the designated 

evidence includes affidavits and copies of e-mail messages by and between the parties 

and their attorneys indicating that they were in discussions and were offering proposals 

and counter-proposals regarding the particular terms to which both Balthes and Appellees 

would agree, including terms which the parties stated were important related to the scope 

and time commitment of the work Balthes would perform and to non-competition and 

non-solicitation provisions. See Kamalnath, 487 N.W.2d at 503 (providing that a counter 

proposition is not an acceptance and that mere discussions and negotiation, including 
24

unaccepted offers, cannot be a substitute for the formal requirements of a contract). 

Based upon the designated evidence and under the circumstances, we conclude that it is 

evident that there was not a meeting of the minds on or after May 6, 2011 regarding the 

terms of any proposed agreement between the parties for Balthes to perform consulting 

work and in exchange for Appellees to dismiss their action against him. Accordingly, the 

court did not err in entering summary judgment in favor of Appellees and against Balthes 

on the issue of whether an agreement regarding the dismissal of Appellees’ action against 

Balthes in exchange for the performance of certain consulting work was reached on or 

after May 6, 2011. See East Porter Cnty. Sch. Corp. v. Gough, Inc., 965 N.E.2d 684 (Ind. 

Ct. App. 2012) (concluding that there was not a meeting of the minds and affirming the 

trial court’s entry of summary judgment). 

However, we reach a different conclusion as to the propriety of summary 

judgment as to Balthes’s argument of promissory estoppel. Balthes argues that his 

reliance on Appellees’ representations that an agreement was reached estops Appellees 

from denying the existence of the May 6, 2011 agreement. Balthes argues that it would 

be unjust to allow Appellees to benefit freely from work he did on their behalf. Under 

Michigan law, the elements of a promissory estoppel claim “consist of (1) a promise (2) 

that the promisor should reasonably have expected to induce action of a definite and 

substantial character on the part of the promisee and (3) that, in fact, produced reliance or 

forbearance of that nature (4) in circumstances requiring enforcement of the promise if 

injustice is to be avoided.” Zaremba Equip., Inc. v. Harco Nat’l Ins. Co., 761 N.W.2d 

151, 166 (Mich. Ct. App. 2008). Under Indiana law, promissory estoppel “is a judicial 
25

doctrine sounding in equity.” Brown v. Branch, 758 N.E.2d 48, 51 (Ind. 2001). 

Specifically, promissory estoppel “encompasses the following elements: (1) a promise by 

the promissor; (2) made with the expectation that the promisee will rely thereon; (3) 

which induces reasonable reliance by the promisee; (4) of a definite and substantial 

nature; and (5) injustice can be avoided only by enforcement of the promise.” Id. at 52. 

The doctrine of promissory estoppel is part of the “concept by which one’s own acts or 

conduct prevents the claiming of a right to the detriment of another party who was 

entitled to and did rely on the conduct.” Id. 

In their affidavits, Eshragh and Ellis stated that Balthes was advised at the May 6, 

2011 meeting of the services needed by Concept but that no agreement was reached and 

that there were details to be worked out related to the scope and amount of work and the 

non-competition terms. On May 9, 2011, Ellis sent an e-mail message to Balthes stating 

in part that “Tuesday is a good fit,” that “[w]e will be running Cotton Shoddy on 7 & 8 

and it will give you a good chance to see the baseline of where the machine is performing 

as well as see the raw material we are running and issues it is presenting,” that “[f]rom 

there we can map out a plan for how to dial in the process and equipment,” and “[t]here 

was some talk in our meeting about closing the loop on some legal stuff - I’ll leave that to 

[Eshragh] and [] Foote. Let’s you and I concentrate on generating a task list and a work 

schedule to get it done,” and “Give me a call on my cell and let me know what time you 

plan on arriving Tuesday and how long you can stay and we’ll get started.” Id. at 97. On 

May 11, 2011, Ripple sent an e-mail message to Balthes with drafts of the settlement 

documents. Later that day, Balthes sent a reply e-mail message to Ripple stating that 
26

“[t]here are some changes required,” that he had a long history of working in the 

industry, and that “[t]he restrictive provisions in the agreement basically kills any chance 

for me to continue working and earn and [sic] income” and that he could not work “under 

these conditions and these provision[s] will need to be changed.” Id. at 103. On May 12, 

2011, Ellis sent an e-mail to Balthes and stated that he was aware that Balthes was still 

working through the details of the agreement and that it made sense to hold off the next 

visit until after the agreement was done. 

On the other hand, in his affidavit, Balthes stated that at the May 6, 2011 meeting, 

he was advised that Appellees would like to find a way to use his expertise in helping 

Concept get various production lines functioning better or just functioning, and that 

Concept specifically needed help with lines 7 and 8 so they could get these lines 

operational enough to run cotton shoddy, and that Concept also needed help with line 5. 

Balthes stated that Ellis described in detail what Appellees needed him to do, namely, 

that Appellees needed help with lines 5, 7 and 8, that Ellis later suggested they may need 

help with lines 2 and 3, and that Balthes was agreeable to helping Appellees with 

production lines 5, 7, and 8 as outlined by Ellis. Balthes stated that Eshragh stated that he 

was happy the lawsuit was over and that they had reached an agreement and that he and 

Eshragh shook hands. Balthes further stated that, in reliance upon the agreement the 

parties reached on May 6, 2011, he returned the following Tuesday to start work, that he 

met briefly with Eshragh, Foote, and Ellis, and that Foote thought it would be a good idea 

to put the parties’ agreement in writing and said he would send something to Balthes to 

review. Balthes stated that he met with the production manager and some production 
27

staff to begin his work and review and evaluate the performance of lines 7 and 8, that he 

evaluated the line issues people were having, that the production team was happy he was 

there and able to help, that he and the others reviewed basic fixes that Concept needed to 

do to improve line performance, and that he made major suggestions for changes to lines 

7 and 8 that were implemented by Concept almost immediately. Balthes stated that 

Eshragh wanted to make sure that the Concept staff were following his recommendations 

and that they set up a program for repairs scheduled to begin that Friday and Saturday 

with a follow-up trip scheduled for the following week. Balthes stated that, as he left, 

Eshragh walked him to the door and restated his position that the suit was forever gone 

and that he was very glad he was there helping Concept, that they again shook hands, and 

that Eshragh called him several times after that to confer. 

Based upon the designated evidence, and keeping in mind that any doubt as to the 

existence of an issue of material fact or an inference to be drawn from the facts must be 

resolved in favor of the nonmoving party, we conclude that there exists a material 

question of fact as to Balthes’s promissory estoppel defense or claim, and accordingly 

summary judgment is precluded as to this issue. We remand to the trial court for further 

proceedings on this specific defense or claim and the extent, if any, to which Balthes may 

be entitled to reliance damages or to an offset of his obligations under the 2010 

Settlement Agreement due to the time and expertise he may have provided to Appellees 

between May 6, 2011 and May 11, 2011. See Jarboe v. Landmark Community 

Newspapers of Indiana, Inc., 644 N.E.2d 118, 122 (Ind. 1994) (noting that Indiana draws 

a line between expectation damages and reliance damages and holding that the remedy 
28

where the doctrine of promissory estoppel may be available “is limited to damages 

actually resulting from the detrimental reliance”), reh’g denied; Hrezo v. City of 

Lawrenceburg, 934 N.E.2d 1221, 1231 (Ind. Ct. App. 2010) (“A successful party is 

entitled to reliance damages only.”), trans. denied. 

For the foregoing reasons, we reverse in part the trial court’s summary judgment 

ruling and remand for further proceedings consistent with this opinion on the sole issue of 

Balthes’s promissory estoppel defense or claim, and in all other respects we affirm the 

court’s ruling. 

Affirmed in part, reversed in part, and remanded for further proceedings. 

BAKER, J., and KIRSCH, J., concur.