IN THE

Indiana Supreme Court

Supreme Court Case No. 49S05-1710-PL-671

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. 49D10-1208-PL-32513

The Honorable David J. Dreyer, Judge

On Petition to Transfer from the Indiana Court of Appeals, 

No. 49A05-1603-PL-580

Opinion by Chief Justice Rush

Justice David, Justice Massa, Justice Slaughter, and Justice Goff concur.
Indiana Supreme Court | Case No. 49S05-1710-PL-671 | March 23, 2018 Page 2 of 18

Rush, Chief Justice.

Parties are free to choose the terms of their agreements, and Indiana 

courts firmly defend this 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 hospital thus did not breach the agreement by paying out 

the doctor’s ownership interest after his employment 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”). He 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 employment agreement was between Dr. Sawyer and the Medical

Group and governed his ten-year term of employment as a cardiologist. 

The operating agreement was between Dr. Sawyer and the Hospital and 

prescribed payout of his ownership interest in the Hospital. And the

joinder agreement was among all three and conditioned Dr. Sawyer’s

continued ownership interest in the Hospital on his continued

employment with the Medical Group. The joinder agreement specified,
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[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 direct or 

indirect membership, ownership or investment interest in [the 

Hospital]. (emphases added) 

The operating agreement then supplied 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 redemption amount based on the operating agreement’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.

The Hospital filed dispositive motions throughout the litigation: 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 operating agreement. 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.
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jury also returned a verdict of $470,000 against the Hospital for breach of 

the joinder agreement. 

The Hospital moved to correct error, reiterating that there 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 motion. 

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 judgment, arguing that the trial 

court erred in denying the Hospital’s motions under Indiana Trial Rules 

12(B)(6), 50, and 59(J). Dr. Sawyer cross-appealed, arguing that the trial 

court erroneously granted summary judgment to the Hospital as to the 

operating agreement, 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, remanding for re-evaluation and re-apportionment 

among the defendants. Id.

The Hospital and the Medical Group separately petitioned to transfer. 

We granted transfer, vacating the Court of Appeals opinion. Ind. 

Appellate Rule 58(A).3

 2 We summarily affirm 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.
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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

We hold that under the plain meaning of the contract language, the 

Hospital did not breach the joinder agreement 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. Finally, 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 challenges the legal sufficiency of Dr. Sawyer’s breach-ofcontract 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. 

First, he asserts that the Hospital did not 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 

Plaintiff’s membership interest in [the Hospital] following Plaintiff’s 

termination of employment with [the Medical Group].” The Hospital then
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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] motions 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 breach 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 unambiguous, 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 joinder agreement says:

WHEREAS, [the Medical Group] and the Physician [Dr. 

Sawyer] are parties to that certain Physician Employment 

Agreement of even date herewith (the “Agreement”); and
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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 Physician 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 pursuant to Section 4.4(c) of the Agreement).

NOW THEREFORE, . . . the 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 argued that we should give these terms their plain 

and ordinary meaning—though they disagreed on what that meaning is. 

Then at oral argument, Dr. Sawyer alternatively offered that we could find 

the terms ambiguous based on the trial court’s rulings, the jury verdict, 

and the vacated Court of Appeals opinion.

But the parties’ disagreement over the 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, we review

a court’s interpretation of contract language de novo. Jakubowicz, 56 

N.E.3d at 619. Thus, the plain meaning controls.
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B. The joinder agreement’s plain language requires redemption 

upon any termination of Dr. Sawyer’s employment with the 

Medical Group.

Dr. Sawyer acknowledges that the joinder agreement requires buying 

out his interest after “any termination of employment.” He contends, 

however, that “any termination” means only a termination permitted by

the employment agreement’s terms because the employment agreement 

and joinder agreement are really one contract.

We disagree. The joinder and employment agreements 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. The Hospital and the Medical Group are 

separate entities, and the four corners of the joinder agreement 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 that the Hospital and the Medical Group are 

really one entity invokes the contemporaneous 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 indicates 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.
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But when a litigant is not a party to one of the agreements, the 

contemporaneous document doctrine most likely will not apply. The 

reasons 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 where

one contract has five parties while another has three. See, e.g., McGann & 

Marsh Co. v. K & F Mfg. Co., 179 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 agreements is nevertheless 

“the same in essential respects” to a party 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, 

179 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, the Medical Group and Dr. Sawyer are parties to both the joinder 

and the employment agreements, but the Hospital is not a party to the 

employment agreement. Dr. Sawyer argues that the Hospital nonetheless

is 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 piercing, 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 Rests. Inc., 880 F.3d 870, 872 (7th Cir. 2018). We 

address below the principle that Dr. Sawyer raised: incorporation by reference. 
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In one breath, Dr. Sawyer acknowledges that the Medical Group and 

the Hospital are separate entities. In 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 

Hospital, 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.” 

He 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 disagree that the Hospital and the Medical Group are a single 

entity. 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, see

Reed v. Reid, 980 N.E.2d 277, 301–02 (Ind. 2012), and sharing an attorney 

does not make the Hospital and the Medical Group one and the same, see

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 party 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 agreements together.

b. The joinder agreement did not incorporate the entire

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,

it incorporates by reference only one provision of the employment 

agreement—Section 4.4(c)—which does not affect this case. 
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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 must 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, 625 (Ind. Ct. App. 2007), trans. denied. 

Mere reference to another contract is not enough. See Bd. of Trs. 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 sufficient 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).

We are also mindful that incorporation occurs in one direction: it pulls 

material into the incorporating contract. See MPACT, 802 N.E.2d at 909. 

While incorporation is unidirectional, 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, the 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 incorporating 

contract that must clearly and explicitly communicate the intent to 

incorporate the other writing. MPACT, 802 N.E.2d at 909. And although 

the terms of the joinder agreement reference the employment agreement 

multiple times, none of these references include an 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 for 
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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) . . . 

These references in the joinder agreement do three things. First, they 

recognize that Dr. Sawyer and the Medical Group are parties to the 

employment agreement. Second, they identify the employment that Dr. 

Sawyer’s ownership interest is conditioned on: his employment as a 

cardiologist for the Medical Group. And, finally, 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 the sole termination that does not trigger the mandatory 

redemption provision—a termination that the parties agree did not occur 

here. See I.C.C., 695 N.E.2d at 1036. In other words, no other portions of 

the employment agreement are incorporated by reference. The joinder 

agreement simply lacks the requisite expression of intent to incorporate 

the entire employment agreement.

2. The plain meaning of “any termination” is any termination, 

regardless of the reason.

Since the joinder agreement incorporated 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 voluntarily ends his employment with the Medical 

Group.
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Vanderburgh Sch. Corp. v. Moll, 264 Ind. 356, 363, 344 N.E.2d 831, 837 (1976). 

But when 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 redemption agreement executed 

on the same day as an employment agreement as extrinsic evidence for 

interpreting the disputed term in the employment agreement).

Thus, looking only within the four corners of the joinder agreement, the

plain meaning of “any termination” is any termination, for any reason. 

This includes a termination that breaches the employment agreement. For 

example, had Dr. Sawyer terminated his employment in a way that 

breached the employment agreement, the joinder agreement would still 

require redemption of his ownership interest. Likewise, when 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 dramatically change the parties’ 

agreement. For the Hospital to determine whether the mandatory 

redemption was triggered, it would have to investigate whether the

termination resulted from a breach of the employment agreement. If the 

parties had intended that result, they could have said 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 we will not add tacit terms into the parties’ 

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

The Medical Group’s termination of Dr. Sawyer’s employment—

authorized by the employment agreement or not—thus triggered the 

joinder agreement’s mandatory redemption provision. The 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 dismissal on that 
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ground, and this legal error pervaded the court’s later rulings on the 

Hospital’s dispositive motions.

Importantly, Dr. Sawyer is not 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, and he 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 acknowledges that he presented no evidence of 

the amount owed for that delay. The Hospital, 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); see also

Kosarko v. Padula, 979 N.E.2d 144, 146 (Ind. 2012). An award of 

prejudgment interest in a contract action is appropriate purely as a matter
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of law when the breach did not arise from tortious conduct,6 the amount 

of the claim rests on a simple calculation, and the trier of fact does not 

need to 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. Where parties have not agreed on an interest 

rate, Indiana Code section 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 and 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 than $27,233.19 for discovery abuses. We conclude that any error in

not holding a hearing was harmless, and the $27,233.19 award was within 

the court’s discretion.

Trial 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). They accordingly have “wide discretionary latitude,” Vanway 

v. State, 541 N.E.2d 523, 527 (Ind. 1989), and their orders carry “a strong 

presumption of correctness,” Gonzalez 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 the 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. Ct. App. 2003), 

trans. denied.
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overturn a decision absent clear error and resulting prejudice. See Ind. 

Trial Rule 61; Vanway, 541 N.E.2d at 527.

Here, discovery disputes hampered every stage of this protracted 

litigation, and the trial court sanctioned Dr. Sawyer and the defendants

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 order compelling discovery. After

consolidating 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 

defendants’ “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 claims that the trial court did not comply with Indiana 

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, 

even if the court here failed to comply with that 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 

sought to recover. The defendants then submitted a response, categorizing

Dr. Sawyer’s submitted fees and explaining why many of them fell 
Indiana Supreme Court | Case No. 49S05-1710-PL-671 | March 23, 2018 Page 17 of 18

outside of the court’s discovery order. Dr. Sawyer replied, contesting the 

defendants’ categorizations. Neither in his petition nor in his reply did Dr. 

Sawyer request another hearing. And at 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’ categorizations 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 the awarded amount 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 presumption 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 the 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 Supreme Court | Case No. 49S05-1710-PL-671 | March 23, 2018 Page 18 of 18

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

John R. Maley

Peter J. Rusthoven

Leah L. Seigel

Barnes & Thornburg LLP

Indianapolis, Indiana

ATTORNEYS FOR PETITIONER ST. VINCENT MEDICAL GROUP, INC.

David B. Honig

Andrew B. Howk

Hall, Render, Killian, Heath & Lyman, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

Kevin W. Betz

Sandra L. Blevins

Betz + Blevins

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE INDIANA LEGAL FOUNDATION INC.

Julia Blackwell Gelinas

Maggie L. Smith

Frost Brown Todd LLC

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF 

INDIANA

Philip E. Kalamaros

Hunt Suedhoff Kalamaros LLP

Saint Joseph, Michigan

Lucy R. Dollens

Quarles & Brady LLP

Indianapolis, Indiana