Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 1 of 12

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 APPELLANT

Andrew W. Hull

Michael R. Limrick

Evan D. Carr

Hoover Hull Turner LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

A. Richard M. Blaiklock

Charles R. Whybrew

Lewis Wagner, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Whitesell Precision 

Components, Inc.,

Appellant-Defendant,

v.

Autoform Tool & 

Manufacturing, LLC,

Appellee-Plaintiff

June 25, 2019

Court of Appeals Case No.

18A-PL-2462

Appeal from the Marion Superior 

Court

The Honorable Heather Welch, 

Judge

Trial Court Cause No.

49D01-1610-PL-36015

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 2 of 12

Case Summary

[1] Whitesell Precision Components, Inc. (“Whitesell”), brings this interlocutory 

appeal from the trial court’s denial of its motion to compel arbitration of a

dispute between Whitesell and Autoform Tool & Manufacturing, LLC 

(“Autoform”). The sole issue presented for our review is whether the trial court 

erred when it denied Whitesell’s motion to compel arbitration. Finding no 

error, we affirm.

Facts and Procedural History

[2] Whitesell is in the business of manufacturing and distributing engineered, 

specialty, and standard components and parts used in various industries, 

including in the assembly and manufacture of automobiles. Autoform is an 

auto parts supplier that produces fuel rail assemblies that are used in sixcylinder General Motors vehicles. Autoform sells its fuel rail assemblies to 

Hitachi Automotive Systems, Americas, Inc. (“Hitachi”). There are two fuel 

rail assemblies in each vehicle, with three injector cups per assembly. Hitachi

provides Autoform the design specifications for the injector cups to be used in 

its fuel rail assemblies.

[3] In October 2013, Hitachi instructed Autoform to contact Whitesell to source 

injector cups for use in the fuel rail assemblies. On October 24, 2013, Autoform 

contacted Whitesell via email and made a “Request for Quotation” (“RFQ”) 

for the manufacture of the injector cups over the course of a five-model-year 

production run. Appellant’s App. Vol. 3. at 22. Whitesell responded to the 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 3 of 12

RFQ with a document entitled “Customer Quotation” (“CQ1”) that included a 

price per injector cup, minimum fabrication quantity, and shipping and 

payment terms. Id. at 25. CQ1 stated, “This Quotation Incorporates and is 

subject to the General Terms and Conditions of Seller as printed on the reverse 

side or next page ....” Id. The next page of CQ1 set forth the following 

relevant general terms and conditions:

1. OFFER AND ACCEPTANCE: These terms and conditions 

govern all sales of product and services to Buyer. Buyer has read, 

understands, accepts, and agrees to these terms and conditions. 

Seller rejects, and objects to, all terms and conditions of Buyer, 

and hereby notifies Buyer that Seller considers any term or 

condition of Buyer an unacceptable material alteration of these 

terms and conditions. If Buyer does not accept these terms and 

conditions, Buyer will notify Seller by promptly returning any 

shipments, and failure to do so shall constitute Buyer’s 

unconditional acceptance of these terms and conditions .... 

Buyer shall not submit additional or different terms and 

conditions, and any such additional or different terms and 

conditions of Buyer shall be deemed objectionable to Seller 

without further notice from Seller and shall not form a part of 

any contract between the parties.... To the extent these terms 

and conditions are determined to constitute an acceptance of any 

offer of Buyer, such acceptance is expressly conditioned upon 

Buyer’s assent to all of these terms and conditions only.

....

19. GOVERNING LAW; JURISDICTION: This contract is 

governed by the laws of ALABAMA, excluding the provision of 

the United Nations Convention on Contracts for the 

International Sale of Goods and any conflict of law provisions 

that would require application of another choice of law.... If 

requested by Seller following the assertion of any claim related to quality 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 4 of 12

of any product or any warranty, such claim shall be submitted to binding 

arbitration before three arbitrators.... Such arbitration shall occur in 

Birmingham, Alabama and be limited to such quality or 

warranty claim.

....

21. ENTIRE AGREEMENT: .... No terms or conditions other 

than those stated above and no engagement or understanding, 

oral or written, in any way purporting to modify these terms and 

conditions shall be binding on Seller unless hereafter made in 

writing and physically signed by its authorized representative.

Id. at 26 (emphasis added).

[4] On November 6, 2013, Autoform sent an email to Whitesell containing a 

purchase order. The purchase order called for the delivery of 300 injector cups 

as a sample for the “PPAP” (product part approval process), followed by 

delivery of 8700 injector cups after PPAP approval. Id. at 28-31. The PPAP 

purchase order also included design specifications and delivery terms.

[5] In late January 2014, Hitachi asked Autoform to provide new pricing to 

account for a lower volume of fuel rail assembly purchases than previously 

anticipated. Accordingly, Autoform submitted a second RFQ to Whitesell 

based on Hitachi’s request for information regarding a lower volume order of 

injector cups. In February 2014, Whitesell provided Autoform a second quote

(“CQ2”) taking into account the lower volume and listing a higher price per 

injector cup.
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[6] On November 17, 2014, Autoform issued its first production purchase order to 

Whitesell listing the original CQ1 lower price per injector cup. Thereafter, 

Autoform issued additional production purchase orders to Whitesell also 

containing the lower price. From at least January 2015 through May 2016, 

Whitesell shipped injector cups to Autoform with invoices reflecting the CQ1 

original lower quoted price per cup.

[7] On October 16, 2015, Whitesell’s quality manager signed a document emailed

to him by Autoform called the “Supplier Quality Guidelines” (“SQG”). The 

SQG stated, in relevant part, “By signing this document, the supplier has 

reviewed [Autoform’s] Quality Guideline and has accepted [Autoform’s] Terms 

and Conditions.” Appellant’s App. Vol. 2 at 193. It was not until late July 

2016 that Whitesell sent Autoform an invoice which reflected the higher CQ2 

per-cup price. Subsequent invoices also reflected the higher price. Autoform, 

however, continued to send purchase orders listing the CQ1 lower price.

[8] This pricing dispute prompted Whitesell to file a complaint for breach of 

contract and declaratory judgment against Autoform on October 11, 2016. On 

the same date, Autoform filed a complaint for breach of contract against 

Whitesell. The cases were consolidated and transferred by agreement to the 

Marion County Commercial Court. Thereafter, the parties engaged in 

preliminary settlement negotiations that ultimately failed. In December 2016, 

Autoform filed an emergency motion for a temporary restraining order 

(“TRO”) after Whitesell stated that it would stop shipping injector cups to 

Autoform until Autoform made back payments based on the higher pricing and 
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agreed to pay the higher price going forward. Following a hearing on the TRO 

motion, the trial court granted a TRO requiring Whitesell to continue shipping 

the injector cups to Autoform during the pendency of the lawsuit. After several 

continuances, the parties agreed to be bound by a preliminary injunction until 

the trial court could enter a judgment at a bench trial on the merits.

[9] On October 3, 2017, Autoform filed an emergency motion for contempt 

alleging that Whitesell threatened to stop shipping the injector cups. During a 

hearing on that motion, the trial court learned for the first time that Autoform 

believed it was receiving defective injector cups from Whitesell that were 

causing problems with the fuel rail assemblies, and that Hitachi had begun 

assessing costs against Autoform related to the allegedly defective fuel rail 

assemblies. In turn, Autoform had reduced its payments to Whitesell on the 

belief that the alleged defects in the fuel rail assemblies were being caused by 

quality issues with the injector cups from Whitesell. The parties informed the 

trial court that they had communicated about correcting the quality issues, but 

they disagreed as to the corrective process. Following the hearing, the trial 

court issued a preliminary order based on what the parties agreed was an 

acceptable temporary resolution.

[10] The trial court held a subsequent hearing to consider Autoform’s motion for 

contempt regarding the quality issues, but the court was unable to conclude the 

hearing and continued it. Two days before the continued hearing was 

scheduled to begin, Whitesell’s counsel withdrew their appearances and new 

counsel entered appearances and requested a continuance on the contempt 
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matter, which the trial court granted. Thereafter, Whitesell filed a motion to 

terminate the contempt proceedings. The trial court held a hearing and 

determined that in order to resolve the quality disputes regarding the injector 

cups, the trial court “would need to determine which part[ies’ terms and

conditions] govern the parties’ agreement.” Appealed Order at 12.

[11] In January 2018, Whitesell filed five motions, including a motion for partial 

summary judgment requesting a determination, as a matter of law, that its 

terms and conditions contained in CQ1 (“Whitesell’s T&Cs”) govern the 

parties’ contractual relationship, as well as a motion to compel arbitration of 

Autoform’s quality-related counterclaims. Whitesell’s motion to compel 

arbitration presupposed the granting of its motion for partial summary 

judgment.

[12] In February 2018, Autoform filed a cross-motion for summary judgment 

arguing that its “Terms and Conditions of Purchase” which incorporated its 

SQG (“Autoform’s T&Cs”), govern the parties’ contractual relationship.

1

 

Appellant’s App. Vol. 4 at 3. On May 2, 2018, the trial court stayed ruling on 

any motions pending a determination of which parties’ terms and conditions 

govern the parties’ relationship. “If Whitesell’s Terms and Conditions 

 

1 Also in February 2018, Whitesell filed a motion to dissolve the preliminary injunction compelling Whitesell 

to continue supplying injector cups to Autoform. The trial court entered an order denying the motion and 

requiring Whitesell to continue shipping injector cups to Autoform. Whitesell sought an interlocutory 

appeal, and another panel of this Court affirmed the trial court in a published opinion. Whitesell Precision 

Components, Inc. v. Autoform Tool & Mfg., LLC, 110 N.E.3d 380, 381-83 (Ind. Ct. App. 2018), trans. denied

(2019).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 8 of 12

governed, the Court reasoned, then the issue of the injector cup part quality 

would be bifurcated from the present case and submitted for arbitration.” 

Appealed Order at 13.

[13] On August 9, 2018, the trial court held an evidentiary hearing on the crossmotions for summary judgment as well as on Whitesell’s motion to compel 

arbitration. Thereafter, the trial court entered a consolidated order denying

both parties’ motions for partial summary judgment and Whitesell’s motion to 

compel arbitration. Specifically, regarding the summary judgment motions, the 

trial court determined that issues of fact and ambiguities remain on which terms 

and conditions govern the parties’ relationship, making summary judgment in 

favor of either party inappropriate. Regarding the motion to compel 

arbitration, the court determined that because the arbitration provision is 

contained in, and presupposes application of, Whitesell’s T&Cs, and because 

the court could not determine that those terms and conditions govern as a 

matter of law, denial of Whitesell’s motion to compel arbitration was 

warranted. This interlocutory appeal ensued. For reasons explained more fully 

below, this appeal solely involves the trial court’s denial of Whitesell’s motion 

to compel arbitration.

Discussion and Decision

[14] We begin by noting that an order denying an application to compel arbitration 

is appealable as a matter of statutory right. Ind. Code § 34-57-2-19(a)(1); 

Brumley v. Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 770, 776 (Ind. Ct. 

App. 2011); see Ind. Appellate Rule 14(D) (permitting interlocutory appeals as 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 9 of 12

provided by statute). Indiana has long recognized a strong policy favoring the 

enforcement of arbitration agreements. Destination Yachts, Inc. v. Pierce, 113 

N.E.3d 645, 653 (Ind. Ct. App. 2018), trans. denied (2019). Indiana Code 

Section 34-57-2-3(a) provides in relevant part:

On application of a party showing an agreement described in 

section 1[2] of this chapter, and the opposing party’s refusal to 

arbitrate, the court shall order the parties to proceed with 

arbitration. Ten (10) days notice in writing of the hearing of such 

application shall be served personally upon the party in default. If 

the opposing party denies the existence of the agreement to 

arbitrate, the court shall proceed summarily to the determination 

of the issue raised without further pleading and shall order 

arbitration if found for the moving party; otherwise, the 

application shall be denied.

Accordingly, once a trial court is satisfied that the parties indeed contracted to 

submit their dispute to arbitration, the court is required by statute to compel 

arbitration. Destination Yachts, 113 N.E.3d at 653. 

[15] Motions to compel arbitration are procedurally akin to motions for summary 

judgment. Brumley, 945 N.E.2d at 776. “The party seeking to compel 

arbitration has the burden of proving the existence of a contract calling for 

arbitration[.]” Id. (citation omitted). After a motion to compel arbitration has 

been made and supported, the burden is on the non-movant to present evidence 

 

2

Section 1 provides that “[a] written agreement to submit to arbitration is valid, and enforceable, an existing 

controversy or a controversy thereafter arising is valid and enforceable, except upon such grounds as exist at 

law or in equity for the revocation of any contract.” 
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that the supposed arbitration agreement is not valid or does not apply to the 

dispute in question.” “State law contract principles apply to determine whether 

parties have agreed to arbitrate.” Id. (citing MPACT Constr. Grp., LLC v. Superior 

Concrete Constructors, Inc., 802 N.E.2d 901, 906 (Ind. 2004)).

[16] Whitesell asserts that Autoform’s quality-related claims must be ordered to 

mandatory arbitration pursuant to Whitesell’s T&Cs, and therefore the trial 

court erred in denying the motion to compel arbitration of those claims. 

However, Whitesell’s motion to compel arbitration presupposes a threshold 

determination by the trial court, as a matter of law, that Whitesell’s T&Cs, and 

not Autoform’s T&Cs, govern the parties’ relationship. Indeed, Whitesell 

specifically concedes this point in its motion to compel. See Appellant’s App. 

Vol. 3 at 109-10 (“If the Court agrees that Whitesell’s General Terms and 

Conditions apply, then Paragraph 19 of those terms provides that ‘the assertion 

of any claim related to the quality of any product ... shall be submitted to 

binding arbitration.... Once the Court determines which party’s terms and 

conditions apply to their relationship, and upon a determination that Whitesell’s 

General Terms and Conditions apply, Autoform’s quality claims should be 

ordered to mandatory arbitration.”) (emphases added). In denying both 

Whitesell’s and Autoform’s motions for summary judgment on this issue, the 

trial court specifically concluded that genuine issues of material fact remain as 

to which party’s terms and conditions govern the parties’ relationship. Being 

unable to determine as a matter of law the threshold issue of which terms and 

conditions apply, the trial court could not be satisfied that the parties indeed 
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contracted to submit any quality-related disputes to arbitration. In other words, 

without more, an order compelling arbitration would be premature. 

Accordingly, the trial court denied Whitesell’s motion.

[17] In this appeal, Whitesell basically requests a de novo determination by this 

Court that, as a matter of law, Whitesell’s T&Cs govern the parties’ relationship

and hence the arbitration provision contained therein applies. In response, 

Autoform cross-appeals, also requesting a de novo determination that, as a 

matter of law, Autoform’s T&Cs govern the parties’ relationship and hence the 

arbitration provision does not apply. We reject both parties’ attempts to 

sidestep the trial court’s denial of their respective motions for partial summary 

judgment on this precise issue by way of an appeal and cross-appeal of the

denial of the motion to compel arbitration. If either party wished to challenge 

the trial court’s determination that genuine issues of material fact remain as to

which terms and conditions apply, it could have sought certification from the 

trial court and pursued a discretionary interlocutory appeal of the ruling on the 

summary judgment motions pursuant to Indiana Appellate Rule 14(B).

3

 

 

3

It is well settled that an order denying a motion for summary judgment is not a final appealable order, and 

therefore a party seeking appellate review of a denial must do so by way of requesting certification of an 

interlocutory appeal from the trial court, as well as seeking acceptance of jurisdiction by this Court, in 

accordance with Indiana Appellate Rule 14. Anonymous Doctor A. v. Sherrard, 783 N.E.2d 296, 299 (Ind. Ct. 

App. 2003). No such request was made here. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2462 | June 25, 2019 Page 12 of 12

Neither party did so. Consequently, we will accept the trial court’s

unchallenged determination as correct.4 

[18] In sum, genuine issues of material fact remain on the threshold issue of which 

party’s terms and conditions apply to the parties’ relationship, and therefore we 

agree with the trial court that Whitesell has not, at this procedural juncture, met

its burden of proving the existence of an enforceable contract between the 

parties calling for arbitration.

5

 Accordingly, we affirm the trial court’s denial of 

Whitesell’s motion to compel arbitration. 

[19] Affirmed. 

Bradford, J., and Tavitas, J., concur.

 

4

In a motion to dismiss and strike cross-appeal, which we deny as moot by separate order issued 

contemporaneously with this decision, Whitesell accuses Autoform of improperly trying to cross-appeal the 

trial court’s uncertified interlocutory order denying its summary judgment motion. However, as explained 

above, we perceive Whitesell’s appellate arguments, although framed under the guise of an appeal from the 

motion to compel arbitration, to in large part also be an attempt to appeal the uncertified interlocutory order 

denying its summary judgment motion. Clearly, Autoform’s cross-appeal is simply a response to Whitesell’s 

arguments. Stated another way, both parties are doing the same thing, and we reject both of their attempts to 

make an end run around the trial court’s summary judgment rulings. 

5 Obviously, Whitesell may renew its arbitration motion upon resolution of the foregoing contract issues.