IN THE 

# Indiana Supreme Court

Supreme Court Case No. 49S05

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## The Care Group Heart Hospital, LLC, Appellant /Cross

- Appellee (Defendant),



### – v

– 

## Roderick J. Sawyer, M.D., Appellee /Cross

- Appellant (Plaintiff).

Argued: December 7, 2017 | Decided: March 23, 2018 Corrected Appeal from the Marion Superior Court, No. 49D10

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- 32513 The Honorable David J. Dreyer, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 49A05

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Opinion by Chief Justice Rush Justice David, Justice Massa, Justice Slaughter, and Justice Goff concur.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 2 of 18 Rush, Chief Justice.

P arties are free to c hoose the terms of their agreements , and Indiana courts firmly defend th is freedom of contract by enforcing agreed

- upon terms

. Here, a doctor worked as a cardiologist and was also a member

– owner of a hospital. He agreed with his employer and with the hospital that if his employment is “terminated for any reason”

— that is , upon “any termination”

— his ownership interest must be discontinued and redeemed. We hold that “any termination ” means just that

— any termination , for any reason . The h ospital thus did not breach the agreement by paying out the doctor’s ownership interest after his employ ment terminated

. It did , however, breach the agreement by delaying the payout , so the doctor is entitled to interest

. We also hold that the trial court did not abuse its discretion in awarding the doctor discovery sanctions of $27,233.19 in attorney fees and expenses

. We therefore affirm in part , reverse in part , and remand to the trial
court

. Facts and Procedural History Doctor Roderick Sawyer worked as a cardiologist for St. Vincent Medical Group, Inc. (“the Medical Group”). H e was also a member

– owner of The Care Group Heart Hospital, LLC (“the Hospital” )

. These two arrangements stood on three agreements : an employment agreement, an operating agreement, and a joinder agreement.
The e mployment agreement was between Dr. Sawyer and the Medical Group and govern ed his ten

- year term of employment as a cardiologist

. The operating agreement was between Dr. Sawyer and the Hospital and prescribe d payout of his ownership interest in the Hospital

. And t he joinder agreement was among all three and condition ed Dr. Sawyer’s continu ed ownership interest in the Hospital on his continu ed employment with the Medical Group. The joinder agreement specifie d ,Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 3 of 18 [w] ithin ninety (90) days of any termination of employment between Physician and [the Medical Group] (other than a termination pursuant to Section 4.4(c) of the Agreement), . . . Physician and [the Hospital] shall cause Physician to be redeemed of his interest in [the Hospital] such that, following such redemption, Physician shall have no continuing direc t or indirect membership, ownership or investment interest in [the Hospital]. (emphas e s added)

T he operating agreement then supplie d a formula for calculating Dr. Sawyer’s redemption amount at the time of his “involuntary withdrawal , ” which includes “the termination of employment or any material agreement [Dr. Sawyer] is a party to with the [Medical Group].” The Medical Group terminated Dr. Sawyer’s employment on July 22, 2011. Almost eight months later, the Hospital paid Dr. Sawyer $196,787

— his rede mption amount based on the o perating a greement’s formula. Dr. Sawyer sued the Medical Group and the Hospital. 1 Against the Medical Group, he claimed tortious interference with business relationships ; breach of the duty of good faith and fair dealing ; and breach of the employment agreement, which caused him to lose both his employment and his ownership interest in the Hospital. Against the Hospital, he brought a breach

- of

- contract claim.

T he Hospital filed dispositive motion s throughout the li tig ation : for partial dismissal, for summary judgment, and for judgment on the evidence

. Each motion relied on a plain reading of the joinder agreement , arguing no breach in the Hospital discontinuing and redeeming Dr. Sawyer’s ownership interest. The trial court denied all these motions as to the joinder agreement, but it granted summary judgment to the Hospital as to the o perating a greement. A jury returned a verdict against the Medical Group for $1.1 million, which has been paid to Dr. Sawyer. The

1 Dr. Sawyer also sued Dr. Christopher Hollon for tortious interference with his employment agreement. The jury returned a verdict in Dr. Hollon’s favor.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 4 of 18 jury also retu rned a verdict of $470,000 against the Hospital for breach of the j oinder a greement. The Hospital moved to correct error , reiterat ing that the re was no breach in discontinuing and redeeming Dr. Sawyer’s ownership interest

— only in delaying the payout after the 90

- day deadline

. The Hospital asked the court to correct the jury’s $470,000 award by entering judgment on the evidence for $6,559.60

— the interest on the five

- month delay at the statutory rate of eight percent

. The court denied the Hospital’s mo tion. Finally, the court ruled on the last of many discovery disputes that tangled nearly every stage of the litigation. It ordered the Hospital and Medical Group to pay a $27,233.19 sanction award to Dr. Sawyer

. The Hospital appealed the $470,000 judgmen t , arguing that the trial court erred in den ying the Hospital’s motions under Indiana Trial Rules 12(B)(6), 50, and 59(J). Dr. Sawyer cross

- appealed , arguing that the trial
court err oneously granted summary judgment to the Hospital as to the

o perating a greement, and that the $27,233.19 in attorney fees and expenses was an inadequate sanction

. The Court of Appeals affirmed both the partial summary judgment for the Hospital and the judgment against the Hospital

. 2 The Care Group Heart Hosp. v. Sawyer , 80 N. E.3d 190, 210 (Ind. Ct. App. 2017). But it reversed the sanction award , remand ing for re

- evaluation and re

- apportionment among the defendants. Id. The Hospital and the Medical Group separate ly petition ed to transfer. We granted transfer, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). 3

2 We summarily a ffirm the Court of Appeals opinion affirming the trial court’s grant of summary judgment as to the operating agreement. See The Care Group Heart Hosp

. v. Sawyer , 80 N.E.3d 190, 203

– 05 (Ind. Ct. App. 2017); Ind. Appellate Rule 58(A)(2).

3 Both before and after we granted transfer, attorneys for the Appellee filed repetitive motions, which we address in a separate order published the same date as this opinion.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 5 of 18 Standard of Review We face two questions. First, did a contract

- interpretation error

— which we review de novo

— pervade the trial court’s rulings on the Hospital’s dispositive motions? See State Farm Mut. Auto. Ins. Co. v. Jakubowicz , 56 N.E.3d 617, 619 (Ind. 2016).
Second, did the trial court abuse its discretion in awarding discovery sanctions of $27,233.19 to Dr. Sawyer ? See McCullough v. Archbold Ladder Co. , 605 N.E.2d 175, 180 (Ind. 1993).

Discussion and Decision

W e hold that under the plain meaning of the contract language , the Hospital did not breach the j oinder a greement by discontinuing and redeeming Dr. Sawyer’s ownership interest. We conclude, though, that the Hospital did breach the agreement by delaying the payout , so Dr. Sawyer is entitled to interest on the delay. F inally , we turn to the sanction award and find no abuse of discretion.

I. The Hospital breached the joinder agreement only by delaying Dr. Sawyer’s payout. The Hospital challenge s the legal sufficiency of Dr. Sawyer’s breach

- of

contract claim

. See Thornton v. State , 43 N.E.3d 585, 587 (Ind. 2015). The claim’s legal sufficiency depends on our interpretation of the parties’
contract

. Before interpreting the parties’ contract, however, we address a threshold matter

— whether the Hospital waived its contract

- interpretation argument. Dr. Sawyer gives three arguments for finding waiver

. F irst , he asserts that the Hospital did n o t raise the argument in its motions for partial dismissal and for summary judgment

. But the Hospital did , in fact, raise the argument in its motion for partial dismissal, asserting that the joinder agreement “ call[ s ] for the mandatory redemption of Plainti ff’s membership interest in [the Hospital] following Plaintiff’s termination of employment with [the Medical Group].” The Hospital thenIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 6 of 18 relied on this plain reading of the joinder agreement in its later dispositive motions. Dr. Sawyer also argues that the Hospital agreed to jury instructions on breach . But the Hospital did not need to object to the jury instructions to preserve its argument that the trial court erred in a contract

- interpretation ruling that was outside the jury’s purview. See, e.g. , City of St. Louis v. Praprotnik , 485 U.S. 112, 119

– 120 (1988) (finding no obstacle to review a challenge , without an objection to jury instructions , where the focus of the challenge was “not on the jury instruction itself, but on the denial of [the party’s] motio ns for summary judgment and a directed verdict”)

. Finally, he argues that the Hospital waited until after the jury returned its verdict to assert that the Hospital’s breach was limited to its untimely payment. But the Hospital did not have to concede brea ch in untimeliness to preserve its argument that, under a plain reading of the contract language, there was no breach for paying out Dr. Sawyer’s ownership interest. The Hospital thus has not waived its contract

- interpretation argument , and we turn to its merits. Our goal in contract interpretation is “to determine the intent of the parties at the time that they made the agreement.” Citimortgage, Inc. v. Barabas , 975 N.E.2d 805, 813 (Ind. 2012). We start with the contract language to determine whether it is ambiguous. Ryan v. TCI Architects/Eng ’ rs/Contractors, Inc. , 72 N.E.3d 908, 914 (Ind. 2017). If the language is u nambiguous , we give it its plain and ordinary meaning in view of the whole contract, without substitution or addition. See id. ; State

v. Int’ l Bus. Machs. Corp. , 51 N.E.3d 150, 160 (Ind. 2016).

A. The parties’ agreed

- upon terms are unambiguous.

The j oinder a greement says : WHEREAS, [the Medical Group] and the Physician [Dr. Sawyer] are parties to that certain Physician Employment Agreement of even date herewith (the “Agreement”); andIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 7 of 18 WHEREAS, Physician is a member of [the Hospital]; and

. . . WHEREAS, the parties hereto desire that Physician and [the Hospital] shall cause Physician’s membership interest in [the Hospital] to be redeemed and Physicia n to no longer have any continuing direct or indirect membership, ownership or investment interest in [the Hospital] in the event that Physician’s employment referenced in the [Employment] Agreement is terminated for any reason (other than a termination pu rsuant to Section 4.4(c) of the Agreement)

. NOW THEREFORE, . . . t he parties hereto agree as follows:

1. Mandatory Redemption

. Within ninety (90) days of any termination of employment between Physician and [the Medical Group] (other than a termination pursuant to Section 4.4(c) of the Agreement), . . . Physician and [the Hospital] shall cause Physician to be redeemed of his interest in [the Hospital] such that, following such redemption, Physician shall have no continuing direct or indirect membership, ownership or investment interest in [the Hospital]. Both parties initially argue d that we should give these terms their plain and ordinary meaning

— though t hey disagree d on what th at meaning is. Then a t oral argument, Dr. Sawyer alternat ively offered that w e could find the terms ambiguous based on the trial court’s rulings, the jury verdict, and the vacated Court of Appeals opinion

. But t he parties’ disagreement over th e plain meaning does not create ambiguity. Jernas v. Gumz , 53 N.E.3d 434, 444 (Ind. Ct. App. 2016), trans. denied

. Nor can the jury verdict or prior court rulings : after all, w e review a court’s interpretation of contract language de novo

. Jakubowicz , 56 N.E.3d at 619. Thus, the plain meaning controls.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 8 of 18 B. The j oind er a greement ’s plain language requires redemption upon any termination of Dr. Sawyer’s employment with the Medical Group. Dr. Sawyer acknowledges that the joinder agreement require s buying
out his interest after “any termination of employment

. ” He contends , however, that “any termination” means only a termination permitted by the e mployment a greement ’s terms because the employment agreement and joinder agreement are really one contract

. We disagree. T he joinder and employment agreement s are not one contract , and the plain meaning of “any termination” is any termination, for any reason.

1. The joinder agreement and employment agreement are not one contract

. Dr. Sawyer urges that the two agreements are really one

— and so should be construed together

— because the Hospital and the Medical Group are one entity and because the joinder agreement incorporates the employment agreement.
We conclude otherwise. T he Hospital and the Medical Group are separate entities , and the four corners of the joinder agreeme nt do not encompass the employment agreement. Thus, the employment agreement does not affect the plain meaning of the joinder agreement’s terms.

a. We do not read the two agreements together under the contemporaneous document doctrine

. Dr. Sawyer’s argument t hat the Hospital and the Medical Group are really one entity invokes the contempo raneous document doctrine. This doctrine lets us, on a case

- by

- case basis, construe together contracts that relate to the same transaction or subject matter , if nothing indica t es a contrary intention

. See Lily, Inc. v. Silco, LLC , 997 N.E.2d 1055, 1068 (Ind. Ct. App. 2013), trans. denied

. Despite the doctrine’s title, the agreements may have been executed at different times. Id.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 9 of 18 But when a litigant is not a party to one of the agreements, the contemporaneous document doctrine most likely will not apply. The

reason s are straightforward: a contract generally cannot bind a nonparty , 4 and assent to the terms of the contract is a basic tenet of contract formation

. Martin Rispens & Son v. Hall Farms, Inc. , 621 N.E.2d 1078, 1087 (Ind. 1993), abrogated on different grounds by Hyundai Motor Am., Inc. v. Goodin , 822 N.E.2d 947 (Ind. 2005) ; Carr v. Hoosier Photo Supplies, Inc. , 441 N.E.2d 450, 455

– 56 (Ind. 1982)

. Yet, these reasons are not automatically implicated by a disparity in the
contracts ’ casts of parties. For instance, the doctrine may still apply whe re one contract has five parties while another has three

. See, e.g. , McGann & Mar sh Co. v. K & F Mfg. Co. , 17 9 Ind. App. 411, 419, 385 N.E.2d 1183, 1188 (1979) , trans. denied

. The critical inquiry is whether the litigant who is absent from the cast of parties to one of the agreement s is nevertheless “the same in essential respects” to a part y to that agreement

. Id. Compare Murat v. South Bend Lodge No. 235 of Benevolent & Protective Order of Elks , 893 N.E.2d 753, 757 (Ind. Ct. App. 2008), trans. denied , and Estate of Spry v. Greg & Ken, Inc. , 749 N.E.2d 1269, 1274 (Ind. Ct. App. 2001), with McGann , 17 9 Ind. App. at 419, 385 N.E.2d at 1188 , and GEICO Ins. Co. v. Rowell , 705 N.E.2d 476 , 481

– 82 (Ind. Ct. App. 1999), and Ruth v. First Fed

. Sav. & Loan Ass’n , 492 N.E.2d 1105, 1108 (Ind. Ct. App. 1986)

. Here, t he Medical Group and Dr. Sawyer a re parties to both the join d er and the employment agreements, but t he Hospital is not a party to the employment agreement

. Dr. Sawyer argues that the Hospital nonetheless i s a party to the employment agreement because the Hospital and the Medical Group are really one entity

. Yet, his position has not been entirely consistent

.

4 Certain traditional principles of state law

— such as assumption, agency, veil pi ercing, alter ego, waiver, estoppel, third

- party beneficiary, and incorporation by reference

— may bind a nonparty to a contract. 17A Am. Jur. 2d Contracts § 400 (2016) ; Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 631 (2009); Warciak v. Subway Rest s. Inc. , 880 F.3d 870, 872 (7th Cir. 2018). We address below the principle that Dr. Sawyer raised: incorporation by reference.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 10 of 18 In one breath , Dr. Sawyer acknowledges th at the Medical Group and the Hospital a re separate entities

. I n his amended complaint, he identifies them as different defendants , observes that the Medical Group is a corporation while the Hospital is a limited liability company , seeks to recover his lost ownership interest from both the Medical Group and the Hospit al, and explains that his employment relationship with the Medical Group differs from his ownership relationship with the Hospital.
But in the next breath, he denies this separation as “simply a fiction.” H e argues that St. Vincent Health is , in his words , the “mother ship” with a controlling ownership of both the Hospital and the Medical Group . He also reasons that the Hospital and the Medical Group retained the same counsel through trial.

We d isagree that the Hospital and the Medical Group a re a single

e ntity. As Dr. Sawyer has already acknowledged, the two parties have different business structures, are different defendants, and have different relationships with him . He has not tried to pierce the corporate veil , s ee Reed v. Reid , 980 N.E.2d 277, 30 1

– 0 2 (Ind. 2012) , a nd sharing an attorney does not make the Hospital and the Medical Group one and the same , s ee Ind. Rules of Prof. Conduct Rule 1.7; Williams v. State , 724 N.E.2d 1070, 1079 (Ind. 2000).
Thus, the Hospital was not a part y to the employment agreement

. Cautious to not bind a nonparty to contract terms it did not assent to, we will not apply the contemporaneous document doctrine to construe the joinder and employment agreement s together.

b. The joinder agreement did not incorporate the e ntire employment agreement

. Dr. Sawyer offers a second theory for reading “any termination” as limited by the employment agreement : since the joinder agreement references and is attached to the employment agreement, it incorporates the employment agreement’s terms

. As explained below , the joinder agreement did not incorporate the entire employment agreement. Rather , i t incorporates by reference only one provision of the employment agreement

— Section 4.4(c)

— which does no t affect this case.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 11 of 18 We interpret incorporated content as part of the agreement. I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co. , 695 N.E.2d 1030, 1036 (Ind. Ct. App. 1998), trans. denied

. For incorporation to occur, the incorporating
contract mus t include a clear and explicit expression of intent to be bound by the auxiliary content. See MPACT Const. Grp., LLC v. Superior Concrete Constructors, Inc. , 802 N.E.2d 901, 907

– 09 (Ind. 2004) ; Norwood Promotional Prods., Inc. v. Roller , 867 N.E.2d 619, 62 5 (Ind. Ct. App. 2007), trans. denied

. Mere reference to another contract is not enough. See Bd. of Tr s. of Purdue Univ. v. Eisenstein , 87 N.E.3d 481, 502

– 03 (Ind. Ct. App. 2017), trans. denied. And simply attaching a document is neither necessary nor suff icient for incorporation. See Kleen Leen, Inc. v. Mylcraine , 174 Ind. App. 579, 583, 369 N.E.2d 638, 640

– 41 (Ind. Ct. App. 1977) (construing document that was “attached to and incorporated by reference” as part of the contract (emphasis added)) ; accord Republic Bank v. Marine Nat. Band , 53 Cal. Rptr. 2d 90, 92 (Cal. Ct. App. 1996).

W e are also mindful that i ncorporation occurs in one direction : it pulls material into the incorporating contract

. See MPACT , 802 N.E.2d at 909. While incorporation is unidire ctional, it may be partial

— incorporating some parts of a separate agreement while leaving others unincorporated. See I.C.C. , 695 N.E.2d at 1036. And material referenced for a particular purpose is incorporated for that purpose only. Id.
Here, t he fact that the joinder agreement was attached as an exhibit to the employment agreement does not show that the joinder agreement incorporated the employment agreement. Indeed, it is the incorporat ing contract that must clearly and explicitly communicate the intent t o incorporate the other writing. MPACT , 802 N.E.2d at 909. And a lthough
t he terms of the joinder agreement reference the employment agreement multiple times, none of these references include a n incorporation clause:
WHEREAS, [ the Medical Group] and [Dr. Sawyer] are parties to that certain Physician Employment Agreement of even date herewith (the “ Agreement ” ) ;

. . . WHEREAS

. . . in the event that Physician’s employment referenced in the [Employment] Agreement is terminated forIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 12 of 18 any reason (other than a termination pursuant to Section 4.4(c) of the [Employment] Agreement)

. . . . Within ninety (90) days of any termination of employment between [Dr. Sawyer] and [the Medical Group] (other than a termination pursuant to Section 4.4(c) of the Agreement) . . .
The se references in the joinder agreement do three things

. First, t he y recognize that Dr. Sawyer and the Medical Group are parties to the employment agreement . Second, they identif y the employment that Dr. Sawyer’s ownership interest is conditioned on : his employment as a cardiologist for the Medical Group

. And, f inally, they specify that the one exception to “any termination” is defined by Section 4.4(c) of the employment agreement. 5
The references to Section 4.4(c) , though, incorporate only that subsection of the employment agreement and only for the purpose of identifying th e sole termination that does not trigger the mandatory redemption provision

— a termination that the parties agree did not occur h ere

. See I.C.C. , 695 N.E.2d at 1036. In other words, n o other portions of the employment agreement are incorporated by reference . T he joinder agreement simply lacks the requisite expression of intent to incorporate the entire employment agreement.

2. The plai n meaning of “any termination” is any termination, regardless of the reason.
Since the joinder agreement inc orporated only an inapplicable section of the employment agreement, we cannot consider the employment agreement in determining the plain meaning of “any termination

. ” See AM Gen

. LLC v. Armour , 46 N.E.3d 436, 440 (Ind. 2015)

. It is true that we determine the meaning of a contract by considering all of its provisions, not individual words, phrases, or paragraphs read alone. Evansville

–

5 Section 4.4(c) applies when the Medical Group eliminates, and another company purchases, the doctor’s practice unit and the doctor vo luntarily ends his employment with the Medical Group.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 13 of 18 Vanderburgh S ch. Corp. v. Moll , 264 Ind. 356, 363, 344 N.E.2d 831, 837 (1976). But w hen the contract terms are unambiguous, as they are here, we do not go beyond the four corners of the contract to investigate meaning. Performance Servs., Inc. v. Hanover Ins. Co. , 85 N.E.3d 655, 660 (Ind. Ct. App. 2017)

. In other words, we will not consider extrinsic evidence, even if that evidence is another agreement executed on the same day. See, e.g. , AM Gen

. LLC , 46 N.E.3d at 440 (recognizing a r edemption a greement executed on th e same day as an e mployment a greement as extrinsic evidence for interpreting the disputed term in the e mployment a greement). Thus, looking only within the four corners of the joinder agreement, t he plain meaning of “any termination” is any termination, for any reason. This includes a termination that breach es the employment agreement. For example, had Dr. Sawyer terminat ed his employment in a way that breached the employment agreement, the joinder agreement would still require redemption of his ownership in terest . Likewise, whe n the Medical Group terminated his employment in breach of the employment agreement

— as the jury found here

— the Hospital is required to buy out Dr. Sawyer’s interest. Adding the terms of Dr. Sawyer’s reading

— any termination under the employment agreement

— would dramatic ally change the parties’ agreement

. For the Hospital to determine whether the mandatory redemption w as triggered, it would have to investigate whether the termination resulted from a breach of the employment agreement. If the parties had intended th at result, they could have s ai d so. See, e.g. , Wright Motors, Inc. v. Marathon Oil Co. , 631 N.E.2d 923, 925

– 26 (Ind. Ct. App. 1994). They did not , and w e will not add tacit term s in to the parties’ express , agreed

- upon ones. Int’ l Bus. Machs. Corp. , 51 N.E.3d at 160.

T he Medical Group ’s terminat ion of Dr. Sawyer’s employment

— authorized by the employment agreement or not

— thus triggered the joinder agreement’s mandatory redemption provision

. T he Hospital accordingly did not breach the agreement by discontinuing and paying
out Dr. Sawyer’s ownership interest. The trial court erred in holding otherwise and denying the Hospital’s motion for partial dismiss al on thatIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 14 of 18 ground , and this legal error pervaded the court’s later rulings on the Hospital’s dispositive motions. Importantly, Dr. Sawyer is no t without a remedy for the discontinuation of his ownership interest. He properly sought to recover the ten

- year value of this ownership interest as damages for the Medical Group ’s breach of the employment agreement , a nd h e recovered from the Medical Group over $1.1 million.

C. The Hospital breached the agreement by delaying payment to Dr. Sawyer , who is entitled to interest on the delay. The only remaining issue of breach is the Hospital’s delay in paying out Dr. Sawyer’s interest

. The parties do not dispute that that the redemption amount was properly calculated ; that the joinder agreement required redemption “[w]ithin ninety (90) days of any termination of employment”; or that the Hospital delivered Dr. Sawyer his redemption check nearly five months after the 90

- day deadline. They thus agree that the delay was a breach , though Dr. Sawyer also acknowledge s that he presented no evidence of the amount owed for that delay. T he Hospi tal , on the other hand, asserted in its motion to correct error that Dr. Sawyer is entitled to statutory interest on the delay. We agree

. To receive a prejudgment interest award, a party needs to show only that the obligor breached the contract by failing to pay the appropriate
amount by a particular time. Thor Electric, Inc. v. Oberle & Assocs., Inc. , 741 N.E.2d 373, 380 (Ind. Ct. App. 2000), disapproved on other grounds by Inman v. State Farm Mut. Auto. Ins. Co. , 981 N.E.2d 1202, 1205 (Ind. 2012) ; s ee also Kosarko v. Padu l a , 979 N.E.2d 144, 146 (Ind. 2012). A n award of prejudgment interest in a contract action is appropriate purely as a matterIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 15 of 18 of law when the breach did not arise from tortious conduct, 6 the amount of the claim rests on a simple calcula tion, and the trier of fact does not need t o exercise its judgment to assess the amount of damages. Inman , at 1204 & n.2; INS Investigations Bureau, Inc. v. Lee , 784 N.E.2d 566, 578 (Ind. Ct. App. 2003) , trans. denied

. W here parties have not agreed on an i nterest rate, Indiana Code s ection 24

- 4.6

- 1

- 102 (2017) supplies a rate of eight percent. See also Ind. Code § § 24

- 4.6

- 1

- 101,

- 103(b). Here, the Hospital undisputedly should have paid Dr. Sawyer his $196,787 redemption amount five months earlier. At the statutory rate of eight percent, Dr. Sawyer is entitled to $6,559.60.

II. The trial court did not abuse its discretion in awarding Dr. Sawyer $27,233.19 in attorney fees an d costs

. Dr. Sawyer argues that the trial court abused its discretion in awarding him discovery sanctions of only $27,233.19 in attorney fees and expenses

. He gives two reasons: that the court did not hold a hearing on the sanction award amount as required by Trial Rule 37(A) , and that he is entitled to more tha n $27,233.19 for discovery abuses

. We conclude that any err or in not holding a hearing was harmless , and the $27,233.19 award was within the court’s discretion.

T rial courts “stand much closer than an appellate court to the currents of litigation pending before them,” so they are better positioned to assess and manage discovery matters. Whitaker v. Becker , 960 N.E.2d 111, 115 (Ind. 2012). T hey accordingly have “wid e discretionary latitude,” Vanway v. State , 541 N.E.2d 523, 527 (Ind. 1989), and their orders carry “a strong presumption of correctness,” Gonzale z v. Evans , 15 N.E.3d 628, 633 (Ind. Ct. App. 2014), trans. denied ; see McCullough , 605 N.E.2d at 180. We will not

6 As we recognized in Inman , an award of prejudgment interest under the Tort Prejudgment Interest Statute (TPIS) , Ind. Code §§ 34

- 51

- 4

- 1 to

- 9 (2017), is reviewed for abuse of discretion. Inman , 981 N.E .2d at 1204. But t he TPIS “applies to any civil action arising out of tortious conduct,” id. (emphasis omitted), and no party suggests that any breach of contract here was tortious

. See INS Investigations Bureau, Inc. v. Lee , 784 N.E.2d 566, 577

– 78 (Ind. C t. App. 2003), trans. denied

.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 16 of 18 overturn a decision absent clear error and resulting prejudice. See Ind. Trial Rule 61; Vanway , 541 N.E.2d at 527.
Here, d iscovery disputes hampered every stage of this protracted litigation , and the trial court sanctioned Dr. Sawyer and the defendan ts along the way. One of the trial court’s discovery orders granted Dr. Sawyer’s motion to compel and awarded expenses for pursuing the order. As litigation progressed, Dr. Sawyer moved for a contempt hearing on the defendants’ failure to comply with the o rder compelling discovery. After consolidat ing several pending motions, the trial court granted Dr. Sawyer’s motion for the contempt hearing. Following a hearing, the court issued an order indicating that “[a]ny expenses, fees, or costs shall be determined when submitted by Plaintiff,” as discussed during the hearing. Dr. Sawyer’s fee petition asked for $450,000. The defendants responded that $27,233.19 of his requested fees were appropriate, but the other expenses fell outside the court’s order and expenses permitted by Indiana Trial Rule 37. For example, Dr. Sawyer’s petition included expenses for a separate qui tam lawsuit, a motion for default judgment that was denied, summary judgment filings, and a consumer complaint against another doctor. Dr. Sawyer replied that he should be compensated $445,500 for the defendant s’ “pervasive and systematic” delays in discovery “[d]uring the entire pendency of the case.” But the trial court agreed with the defendants’ assessment of Dr. Sawyer’s submitted expenses. Dr. Sawyer first claim s that the trial court did not comply with In diana Trial Rule 37(A), which requires the court , after granting a motion to compel discovery, to provide an opportunity for a hearing before awarding reasonable expenses incurred in obtaining the order

. However,

e ven if the court here failed to comply wit h th at requirement , Dr. Sawyer has not shown prejudice

— that the lack of a hearing affected the sanction
amount

. Dr. Sawyer gave the trial court a detailed fee request, including over fifty pages of spreadsheets itemizing and describing the expenses he soug ht to recover . The defendants then submitted a response, categoriz ing Dr. Sawyer’s submitted fees and explain ing why many of the m fellIndiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 17 of 18 outside of the court’s discovery order. Dr. Sawyer replied, contesting the defendants’ categorizations. N either in his petition nor in his reply did Dr. Sawyer request a nother hearing . A nd a t oral argument, when asked what information a hearing would have revealed that the record did not already supply, Dr. Sawyer’s counsel responded only that he would have pointed out how the defendants’ categorization s misalign with the court’s order. This explanation, however, was included in Dr. Sawyer’s reply. He thus has failed to show that the award would have been different had there been a hearing. Dr. Sawyer next argues that t he awarded amoun t is erroneously low

. Again, this argument is without merit. The court had in the parties’ filings a detailed account of the disputed fees, with reasons why those fees fell within or outside the scope of the court’s orders and Rule 37

. Given the compounded discovery issues of this protracted litigation , the detailed analysis of expenses presented to the trial court, and Dr. Sawyer’s requests for expenses unrelated to discovery abuses, we find that Dr. Sawyer has
not overcome the strong p resumption of correctness in the court’s award. We thus find no abuse of discretion and affirm the court’s $27,233.19 sanction award.

Conclusion

We defend the freedom of contract by enforcing parties’ agreed terms. Giving effect to the plain language of th e parties’ agreement here , we reverse the $470,000 judgment against the Hospital and remand for entry of judgment in the amount of $6,559.60 against the Hospital.

We also find no abuse of discretion in the trial court’s award of attorney fees and expenses

. We therefore reverse in part , affirm in part , and remand to the trial
court to enter judgment against the Hospital in the corrected amount

.
David, Massa, Slaughter, and Goff, JJ., concur.Indiana Suprem e Court | Ca se No. 49S05

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- 671 | March 23, 2018 Page 18 of 18 ATTORNEYS FOR APPELL ANT /CROSS

- APPELLEE John R. Maley Peter J. Rusthoven Leah L. Seigel Barnes & Thornburg LLP Indianapolis, Indiana

ATTORNEYS FOR PETITI ONER ST. VINCENT MED ICAL GROUP, INC. David B. Honig Andrew B. Howk Hall , Render , Killian , Heath & Lyman, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELL EE /CROSS

- APPELLANT

Kevin W. Betz Sandra L. Blevins Betz + Blevins Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE INDIANA LEGA L FOUNDATION INC.
Julia Blackwell Gelinas Maggie L. Smith Frost Brown Todd LLC Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE D EFENSE TRIAL COUNSEL OF INDIANA Philip E. Kalamaros Hunt Sue d hoff Kalamaros LLP Saint Joseph, Michigan Lucy R. Dollens Quarles & Brady LLP Indianapolis, Indiana