Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

RICHARD L. RENNICK, JR. JON P. McCARTY

Wallace Law Firm Covington, Indiana

Covington, Indiana

IN THE

COURT OF APPEALS OF INDIANA

SANDRA ELAINE LAPPIN, )

)

Appellant-Plaintiff, )

)

vs. ) No. 86A03-1407-PL-229

)

ANTHONY ALEX TIMMERMAN, )

)

Appellee-Defendant. )

APPEAL FROM THE WARREN CIRCUIT COURT

The Honorable John A. Rader, Judge

Cause No. 86C01-1306-PL-82

January 21, 2015

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Sandra Lappin filed a complaint against Anthony Timmerman, Lappin’s exhusband, seeking an injunction to prohibit his participation in an HVAC business in 

violation of the parties’ covenant not to compete. Timmerman filed a motion to dismiss 

Lappin’s complaint, which was converted to a summary judgment motion following a 

hearing where both parties submitted evidence outside of the pleadings. The trial court 

issued an order granting Timmerman’s motion to dismiss, which, on appeal, both parties 

treat as a grant of summary judgment in favor of Timmerman. Lappin presents a single 

issue for our review, namely, whether the trial court erred when it entered summary 

judgment in favor of Timmerman.

We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

While they were married, the parties co-owned an HVAC business known as Tiny 

Tim’s Tin Shop, LLC (“Tiny Tim’s”). When the parties divorced in 2010, Timmerman 

sold his interest in Tiny Tim’s to Lappin for $100,000. In addition, the parties’ property 

settlement agreement, dated October 29, 2010, included the following provision:

The husband agrees that he will not directly or indirectly sell or solicit 

HVAC sales and service business or be, in any manner, engaged in the 

HVAC sales and service business, or related business, within a radius of 

forty-five (45) miles from Covington, Indiana, for a period of three (3) 

years after the execution of this agreement. He further agrees that the 

customer files and types and amounts of service and sales by Tiny Tim’s 

Tin Shop LLC, are trade secrets and will be kept secret by him for a period 

of three (3) years from the date of this agreement. Notwithstanding the 

provisions contained in this paragraph, the husband may perform HVAC 

work as part of his employment with a company as long as the company’s 

primary line of business is not installing, servicing, selling[,] or maintaining 

HVAC systems.
3

Appellant’s App. at 4 (emphasis added).

On June 24, 2013, Lappin filed a complaint against Timmerman seeking a 

temporary restraining order and preliminary and permanent injunctive relief. Lappin 

alleged that Timmerman had “directly or indirectly acquired an interest in and/or [was] 

employed by a heating and cooling entity in direct violation” of the covenant not to 

compete. Id. at 13. Timmerman filed a motion to dismiss for failure to state a claim 

upon which relief may be granted. Timmerman alleged that the parties’ covenant not to 

compete was “unreasonable on its face and should not be enforced.” Id. at 17. During a 

hearing on that motion in April 2014, Lappin submitted evidence outside the pleadings,

which was not excluded by the court. And, at the conclusion of the hearing, the trial 

court took the matter under advisement and gave Timmerman two weeks to submit 

additional argument.

On June 4, 2014, the trial court issued an order granting Timmerman’s motion to 

dismiss.1 In particular, the trial court found that the parties’ covenant not to compete is 

“reasonable as to geographical area and time but that it is not reasonable as to scope.” Id.

at 72. The trial court concluded that the covenant not to compete was unenforceable. 

Thus, the trial court entered summary judgment in favor of Timmerman. This appeal 

ensued.

 

1

 On appeal, the parties agree that Timmerman’s motion to dismiss was converted to a summary 

judgment motion by operation of Trial Rule 12(B). And the record shows that the parties were given a 

reasonable opportunity to present all material made pertinent to such a motion. See T.R. 12(B).
4

DISCUSSION AND DECISION

Lappin contends that the trial court erred when it entered summary judgment in 

favor of Timmerman. Our supreme court recently reaffirmed our standard of review in 

summary judgment appeals:

We review summary judgment de novo, applying the same standard as the 

trial court: “Drawing all reasonable inferences in favor of . . . the nonmoving parties, summary judgment is appropriate ‘if the designated 

evidentiary matter shows that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of law.’” 

Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).

* * *

Summary judgment is a desirable tool to allow the trial court to 

dispose of cases where only legal issues exist. But it is also a 

“blunt . . . instrument” by which the non-prevailing party is prevented from 

having his day in court. We have therefore cautioned that summary 

judgment is not a summary trial and the Court of Appeals has often rightly 

observed that it is not appropriate merely because the non-movant appears 

unlikely to prevail at trial. In essence, Indiana consciously errs on the side 

of letting marginal cases proceed to trial on the merits, rather than risk 

short-circuiting meritorious claims.

Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014).

Here, the material facts are undisputed. Lappin paid Timmerman $100,000 for his 

interest in Tiny Tim’s.2 The parties’ settlement agreement contains a covenant not to 

compete whereby Timmerman agreed that he would not “directly or indirectly sell or 

solicit HVAC sales and service business or be, in any manner, engaged in the HVAC 

sales and service business, or related business, within a radius of forty-five (45) miles 

 

2

 For the first time on appeal, Timmerman contends that “nothing in the [property settlement] 

Agreement ascribes a value to Mr. Timmerman’s interest in Tiny Tim’s or states that the payment is a 

quid pro quo for the transfer, as opposed to being a settlement payment to equalize the division of [the] 

marital estate in general.” Appellee’s Br. at 2. But during the hearing before the trial court, Lappin 

testified that she paid Timmerman $100,000 for his interest in the business, and Timmerman did not 

present any evidence to contradict that testimony.
5

from Covington, Indiana, for a period of three (3) years after” October 29, 2010. 

Appellant’s App. at 4. In approximately May 2013, Timmerman placed an advertisement 

for an HVAC company called Affordable Comfort on his truck. Affordable Comfort is 

an HVAC business owned by a friend of Timmerman’s. And, also before the expiration 

of the covenant not to compete, Timmerman wrote two proposals for “heating and 

cooling work” on behalf of Affordable Comfort. Tr. at 8. The business address of 

Affordable Comfort is located in Covington, and the company does business in 

Covington.

Lappin contends that the trial court erred when it concluded that the covenant not 

to compete is unreasonable in scope and, therefore, unenforceable as a matter of law. 

Our supreme court set out the applicable law in Dicen v. New Sesco, Inc., 839 N.E.2d 

684, 687-88 (Ind. 2005):

Covenants not to compete are not favored in the law. Licocci v. Cardinal 

Assocs., Inc., 445 N.E.2d 556 (Ind. 1983). When reviewing covenants not 

to compete, Indiana courts have historically enforced reasonable 

restrictions, but struck unreasonable restrictions, granted they are divisible.

Wiley v. Baumgardner, 97 Ind. 66, 69 (1884); Beard v. Dennis, 6 Ind. 200, 

203-05 (1855); Bennett v. Carmichael Produce Co., 64 Ind. App. 341, 346-

49, 115 N.E. 793, 795-96 (1917). . . .

For a variety of reasons, covenants not to compete ancillary to the 

sale of a business stand in better stead. These reasons were aptly stated by 

a Massachusetts court in Alexander & Alexander, Inc. v. Danahy[, 488 

N.E.2d 22, 28 (Mass. App. Ct. 1986)]:

In the former situation there is more likely to be equal 

bargaining power between the parties; the proceeds of the sale 

generally enable the seller to support himself temporarily 

without the immediate practical need to enter into 

competition with his former business; and a seller is usually 

paid a premium for agreeing not to compete with the buyer.

Where the sale of the business includes good will . . . a broad 
6

noncompetition agreement may be necessary to assure that 

the buyer receives that which he purchased. . . . On the other 

hand, an ordinary employee typically has only his own labor 

or skills to sell and often is not in a position to bargain with 

his employer.

Despite these differences, both employment covenants and sale of a 

business covenants are still reviewed under a reasonableness standard.

Young v. Van Zandt, 449 N.E.2d 300, 304 (Ind. Ct. App. 1983). As a 

result, the policy considerations “dictate that noncompetition covenants 

arising out of the sale of a business be enforced more liberally than such 

covenants arising out of an employer-employee relationship.” Alexander & 

Alexander, Inc., 488 N.E.2d at 28.

. . . “Reasonableness is . . . measured in terms of time, space, and 

prohibited activity.” Young, 449 N.E.2d at 304. The more liberal 

enforcement of sale of a business covenants means that they will be deemed 

reasonable when they are “limited to the area of business involved. . . .” 

Donahue v. Permacel Tape Corp., 234 Ind. 398, 405-06, 127 N.E.2d 235, 

238 (1955).

(Emphasis added). The determination whether a covenant not to compete is reasonable is 

a question of law. MacGill v. Reid, 850 N.E.2d 926, 929 (Ind. Ct. App. 2006).

Here, because the parties’ covenant arose out of the sale of their business, they had 

equal bargaining power, and we analyze the covenant using a more liberal approach. The 

trial court found that the parties’ covenant not to compete is reasonable as to geographical 

area and time, but is not reasonable as to scope. In particular, the trial court found that 

the term “related business” as used in the covenant is undefined and could be construed 

to prohibit Timmerman from doing work in plumbing, electrical, or contracting. 

Appellant’s App. at 70. But the trial court ignored the limiting language included in the 

covenant, which provides: “Notwithstanding the provisions contained in this paragraph, 

the husband may perform HVAC work as part of his employment with a company as 

long as the company’s primary line of business is not installing, servicing, selling[,] or 
7

maintaining HVAC systems.” Id. at 4 (emphasis added). Again, our supreme court has 

held that a covenant not to compete ancillary to the sale of a business will be deemed 

reasonable when it is limited to the area of business involved. See Dicen, 839 N.E.2d at 

688. Because the parties’ covenant not to compete ancillary to the sale of their business 

is expressly limited to Timmerman’s performing services for a company that is primarily 

an HVAC business, we hold that the covenant is reasonable as a matter of law. See id.

Further, even assuming for the sake of argument that the “or related business”

element is unreasonably broad, the trial court could have implemented the blue pencil 

doctrine. As we explained in Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 914-15 (Ind. 

Ct. App. 2011),

[i]f a covenant is unreasonable as written, courts may not create a 

reasonable restriction under the guise of interpretation. Licocci v. Cardinal 

Assocs., Inc., 445 N.E.2d 556, 561 (Ind. 1983). However, where a 

provision of a restriction is unreasonable, the blue pencil doctrine permits 

courts to strike that provision from those which are reasonable if the 

unreasonable restrictions are divisible from the rest. Dicen v. New Sesco, 

Inc., 839 N.E.2d 684, 687 (Ind. 2005).

Accordingly, striking the words “or related business” from the parties’ covenant not to 

compete would also render it reasonable and enforceable. The trial court erred when it 

entered summary judgment in favor of Timmerman. 

Reversed and remanded for further proceedings.

MATHIAS, J., and BRADFORD, J., concur.