Court of Appeals of Indiana | Memorandum Decision 82A05-1606-CC-1263 | April 12, 2017 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Patrick A. Duff

Duff Law, LLC

Evansville, Indiana

ATTORNEY FOR APPELLEE

George C. Barnett, Jr.

Barnett Law, LLC

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Foncannon Tax & Financial 

Services, LLC,

Appellant-Plaintiff,

v.

Stephen C. Gubler, P.C., and 

Stephen C. Gubler,

Appellee-Defendant.

April 12, 2017

Court of Appeals Case No.

82A05-1606-CC-1263

Appeal from the Vanderburgh 

Superior Court

The Honorable Richard G. 

D’Amour, Judge

Trial Court Cause No.

82D07-1505-CC-2568

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1606-CC-1263 | April 12, 2017 Page 2 of 11

Case Summary

[1] Foncannon Tax & Financial Services, LLC (“Foncannon Services”) sued 

Stephen C. Gubler, P.C. (“the Corporation”), and Stephen C. Gubler, in his 

individual capacity (“Gubler”), for violation of a covenant not to compete 

connected to Gubler’s sale of the Corporation’s assets to Foncannon Services. 

The trial court granted summary judgment to Gubler and the Corporation. 

Foncannon Services now appeals.

[2] We reverse and remand.

Issue

[3] Foncannon Services presents a single issue, which we restate as whether the 

trial court improvidently granted summary judgment.

Facts and Procedural History

[4] In 2004, Gubler was nearing retirement, and decided to sell the assets of his 

accounting practice to Foncannon Services. As part of this transaction, Gubler, 

on behalf of the Corporation, signed a consulting agreement (“the Agreement”) 

that included a covenant not to compete. The Agreement identified Foncannon 

Services as “Purchaser,” the Corporation as “Consultant Firm,” and provided, 

among other things:

1. Consulting Services. During the period that begins on 

January 3, 2005 and ends on December 31, 2007 or such later 
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date as may be mutually agreed to by the parties (the “Consulting 

Period”), Consultant Firm shall consult with and advise 

Purchaser as to those matters in connection with the Practice as 

to which Consultant Firm’s experience and expertise would be 

useful and valuable, including, but not limited to, the following: 

(a) advice and consultation with respect to customer relations 

and advertising programs; (b) evaluation and development of and 

advice and consultation with respect to marketing programs and 

strategies; (c) advice with respect to competitors’ products and 

marketing programs; (d) rendering assistance to Purchaser to 

maintain its relationships with clients, suppliers and others with 

whom there have been beneficial relationships; (e) review and 

consultation in connection with monthly operating statements of 

Purchaser; (f) review and consultation in connection with annual 

financial statements of Purchaser; (g) rendering assistance to 

Purchaser in establishing relationships with new clients; and (b) 

such other consulting services as Purchaser may reasonably 

request. All service to be performed by Consultant Firm will be 

rendered by Stephen C. Gubler.

(Hereinafter “the Consulting Services Provision”). (App’x Vol. 2 at 105.) For 

these services, the Agreement provided for payment of $4,000 per month on or 

before the first day of February, March, April, May, and June of each year of 

the Consulting Period. (App’x Vol. 2 at 106.)

[5] The Agreement included a non-competition and non-solicitation provision that, 

in relevant part, provided:

4. Noncompetition and Nonsolicitation. Stephen C. 

Gubler covenants and agrees that he will not, during the 

Consulting Period or at any time within five years thereafter, 

directly or indirectly, on his own behalf or on behalf of any third 

party, whether as an agent, employee, employer, officer, director, 
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shareholder, member, principal, consultant, independent 

contractor, partner, creditor or in any other capacity:...

(b) induce, cause, solicit, advise or influence any 

person, business or entity who was a customer of 

Purchaser during the Consulting Period, or

(c) perform any accounting, tax preparation, or 

related services within one hundred eighty (180) miles of 

the Purchaser.

Consultant Firm acknowledges and understands that it is 

essential and reasonable, in order to protect Purchaser’s interests 

under this Agreement, that Consultant Firm be restricted in the 

manner described above during the Consulting Period.

(App’x Vol. 2 at 106-107.) The Agreement also included a provision requiring 

that modifications to the Agreement be made only in writing.

[6] Gubler, through the Corporation, provided business consulting services to 

Foncannon Services through 2007. After that time, Gubler continued to 

perform work for Foncannon Services. The nature of that work centered upon 

tax preparation and advising for clients of Foncannon Services, and payment 

for these services largely followed the same terms as set out in the Agreement.

[7] Gubler performed work for Foncannon Services into 2014’s tax season. 

Foncannon Services wrote checks both to Gubler personally and to the 

Corporation through June 2014, and wrote checks to Gubler personally nearly 

monthly through December 31, 2014.
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[8] During the 2015 tax season, Gubler began to offer his services to elderly clients. 

Rather than accept payment, Gubler requested that his clients use the money 

they would have paid in fees and instead donate that money to charitable 

causes. Gubler was the subject of a media profile sponsored by a tax software 

company, Intuit Professional Tax. In the profile, Gubler discussed his new 

charitable venture, which he funded in part from a prize from Intuit 

Professional Tax. Gubler said that he had decided in April 2014 to retire from 

practice, but that five months later he invited some of his and the Corporation’s 

former clients over the age of 65 to join him in the venture. Gubler also 

discussed plans to establish a non-profit tax service for seniors. (App’x Vol. 2 at 

183-86.)

[9] Foncannon Services learned of Gubler’s activities, which were conducted under 

the name of the Corporation. On May 22, 2015, Foncannon Services filed suit, 

alleging breach of contract, breach of fiduciary duty, tortious interference with a 

contractual relationship, and fraud against both Gubler and the Corporation. 

An amended complaint was filed on August 28, 2015.

[10] On January 5, 2016, Foncannon Services filed a motion seeking preliminary 

and permanent injunctions against Gubler and the Corporation.

[11] On January 26, 2016, Gubler and the Corporation filed a motion for summary 

judgment as to all counts in the complaint.

[12] On February 29, 2016, a hearing was conducted on the motion for injunctive 

relief and the motion for summary judgment. On March 7, 2016, the trial court 
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entered summary judgment for Gubler and the Corporation as to all counts, 

and denied the motion for injunctive relief as moot.

[13] On April 6, 2016, Foncannon Services filed a motion to correct error. After a 

hearing, the trial court denied the motion on May 16, 2016.

[14] This appeal ensued.

Discussion and Decision

[15] Foncannon Services appeals the trial court’s denial of a motion to correct error. 

We review appeals from a court’s order on a motion to correct error for an 

abuse of discretion, which occurs when the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before it, or when it 

errs on a legal matter. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. 

App. 2010), trans. denied.

[16] Underlying the court’s order on the motion to correct error is an order for 

summary judgment. We review a grant of summary judgment de novo. 

Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009). Summary judgment is 

appropriate only where there is no genuine issue of material fact and the 

movant 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 the facts are construed in 

favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of the 

motion for summary judgment is limited to those matters designated to the trial 
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court. T.R. 56(H); Mangold, 756 N.E.2d at 973. We carefully review a decision 

on summary judgment to ensure that a party was not improperly denied its day 

in court. Mangold, 756 N.E.2d at 974.

[17] At summary judgment, Foncannon Services argued that the Consulting Period 

had been extended. Gubler and the Corporation argued that there had been no 

extension. The trial court entered summary judgment for Gubler and the 

Corporation, reasoning that the terms of the Agreement required that there 

could be no extension of the Consulting Period and, in turn, no extension of the 

duration of effect of the covenant not to compete without a written 

modification of the Agreement. Foncannon Services argues that the trial court 

erred when it thus construed the Agreement.

[18] The appeal, then, initially presents a question of contract interpretation. 

Neither Foncannon Services nor Gubler and the Corporation argue that the 

contract is ambiguous. “In interpreting an unambiguous contract, a court gives 

effect to the parties’ intentions as expressed in the four corners of the 

instrument, and clear, plain, and unambiguous terms are conclusive of that 

intent.” Nightingale Home Healthcare, Inc. v. Helmuth, 15 N.E.3d 1080, 1084 (Ind. 

Ct. App. 2014).

[19] The Consulting Period was defined by the Agreement: “the period that begins 

on January 3, 2005 and ends on December 31, 2007 or such later date as may 

be mutually agreed to by the parties.” (App’x Vol. 2 at 183.) Foncannon 

Services argues that Gubler’s continued tax preparation and work consulting for 
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Foncannon Services clients, together with the ongoing payment of money in 

amount and schedule like that provided for in the Agreement, was an extension 

of the Consulting Period. Foncannon Services argues that this extension was 

expressly included by the parties in the Consulting Period definition, and no 

modification was required to give the extension effect—simply payment and 

continued work by Gubler. Thus, Foncannon Services argues, the trial court 

erred when it concluded that any modification of the Agreement was required 

to extend the Consulting Period and, in turn, the five-year post-Consulting 

Period term of the covenant not to compete.

[20] We agree that the trial court’s interpretation of the Agreement is in error on this 

point. The Agreement does not, of itself, require a separate writing to continue 

the Consulting Period, because the language of the Agreement provides for 

extension of the Consulting Period. Thus, an extension is by the plain language 

of the agreement not a modification.

[21] Moreover, even if the extension were a modification, a written contract can be 

modified without a writing, even where the written agreement provides that it 

may be modified only by means of a written modification. Skweres v. Diamond 

Craft Co., 512 N.E.2d 217, 220-21 (Ind. Ct. App. 1987). In such cases, 

“modification of a contract, because it is a contract, requires all the requisite 

elements of a contract.” City of Indianapolis v. Twin Lakes Enterprises, Inc., 568 

N.E.2d 1078, 1085 (Ind. Ct. App. 1991), trans. denied.
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[22] Even when a trial court has erred, we may affirm the entry of summary

judgment on any grounds supported by the designated evidentiary material, so 

long as there is no question of material fact and the movant is entitled to 

judgment as a matter of law. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. 

Corp., 937 N.E.2d 853, 859 (Ind. Ct. App. 2010). We cannot, however, affirm 

the summary judgment decision here because the question of extension or 

modification leaves remaining a question of material fact: whether there was a 

mutual agreement between the parties to extend the Consulting Period or 

modify the Agreement to create such an extension, and whether the 

requirements for either extension or modification were satisfied.

[23] The designated evidentiary material, viewed in a light favorable to the 

nonmovant, indicates the following. Gubler and the Corporation both 

continued to work for Foncannon Services, and they received compensation at 

times and in amounts like the compensation specified in the Agreement. Based 

upon testimony from Foncannon Services’ principal, Robert Foncannon, 

Gubler and the Corporation did not provide consulting work directly to 

Foncannon Services after December 31, 2007, the end of the un-extended or unmodified Consulting Period as set forth in the Agreement. Gubler and the 

Corporation provided services to Foncannon Services’ clients, however, many 

of whom were the Corporation’s former clients.

[24] Moreover, there is evidence that as late as 2011, some amount of Foncannon 

Services’ ongoing business with the Corporation’s former clients were the result 

of Gubler’s continued involvement with Foncannon Services’ accounting 
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practice. An electronic message from Gubler to Robert Foncannon in April 

2011 stated:

Mark Patterson emailed me. I assume wanting some free help. 

He has to understand I am finished for tax season, and if he 

wants my help there will be the same charge as if I were working 

for Foncannon on a full-time basis. I didn’t mind helping him 

initially so you could land the client.

I copied you in on the email, and you need to make it perfectly 

clear to him that if he wants my help that there will be a charge 

for it. I don’t expect to volunteer my time once they are a client. 

And it’s not fair to you since technically I am under the noncompete agreement although it would seem fair to be 

compensated.

(App’x Vol. 2 at 139.) Thus, some of Gubler’s and the Corporation’s activity 

may fall into the non-exclusive list of consulting services in the Agreement. 

[25] The provisions of the Agreement provide for a possibility of extension. But the 

provisions do not state that any continued work for Foncannon Services on the 

part of the Corporation or Gubler personally would necessarily result in an 

extension. Thus, the designated evidentiary matter is essentially silent on the 

question of whether the parties agreed to an extension or modification of the 

Agreement, and we are left with the arguments of the parties: Foncannon 

Services insists the extension ran through 2014, and Gubler and the 

Corporation insist there was no extension at all.

[26] Taking the evidence together with the inferences favoring Foncannon Services 

as the nonmovant, we cannot say that there is no question of material fact as to 
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the existence of a mutual agreement for extending the term of the Consulting 

Period. That is a fact question to be addressed upon remand by the trial court. 

We accordingly reverse the entry of summary judgment.1

[27] Reversed and remanded for further proceedings. 

Robb, J., concurs.

Vaidik, C.J., concurs in result without opinion.

 

1 We note that the trial court opined “as an aside” that Gubler could not personally be liable for violation of 

the non-compete provision of the Agreement because the contract was between Foncannon Services and the 

Corporation, but not Gubler personally. (App’x Vol. 2 at 213.) We note that Gubler is named in the 

Agreement as being bound by the provisions of the non-compete provision, Gubler was the sole signatory for 

the Corporation, and Gubler apparently viewed himself as being bound by the non-compete provision. More 

crucially, Gubler’s activities, of which Foncannon Services complains, are identified as occurring under the 

auspices of the Corporation in at least one of the designated materials at summary judgment—the 

advertisement from Intuit. (App’x Vol. 2 at 183.)