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Date: 02-01-2022
Case Style:
Barry S Ring v. Bharatkumar Patel
Case Number: 21A-CP-01367
Judge: Robert R. Altice, Jr.
Court:
COURT OF APPEALS OF INDIANA
On appeal from The Lake Superior
Court
Plaintiff's Attorney:
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Defendant's Attorney: Kevin E. Werner
Description:
Indianapolis, IN - Contract lawyer represented Appellant with appealing the grant of partial summary judgment.
On October 15, 2017, Ring was interested in purchasing certain commercial
real estate in the city of Hobart from Patel. That same day, Ring sent a letter of
interest1 (original letter) to Patel that included the following language:
This letter is being executed solely for the convenience and future
reference of the parties and their counsel, and it is not intended and
shall not be construed as a binding contract between the parties; rather,
it shall form the basis for negotiation of the Purchase Agreement, which
1 The parties use “intent” and “interest” interchangeably when referring to the letter. For purposes of
consistency, we will use “intent” throughout the opinion.
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 3 of 10
shall constitute the sole contract between Seller and Buyer if and when
executed and delivered.
. . .
7. Terms of Offer: The foregoing may be accepted by Seller by
executing and returning a counterpart of this letter of interest to
Buyer and upon the settlement of the purchase price pursuant to
the firm offer.
Upon acceptance, Buyer would cause a Purchase Agreement, as specified
herein, to be prepared and delivered to Seller within ten (10) business
days after the date of execution and delivery hereof, which Purchase
Agreement would incorporate the terms of this letter of interest
and any other terms and conditions which Buyer may propose.
This letter of interest is not intended to be and shall not constitute a
contract or binding agreement and shall not create any legal rights or
obligations between the parties. Further, neither party shall have the
right to rely on this letter of interest for any reason whatsoever. It is
intended that all legal rights and obligations between Buyer and Seller
(if any) would be created under and governed solely by the Purchase
Agreement if and when the same is fully executed by Buyer and Seller.
Appellant’s Appendix Vol. II at 49-50 (emphasis added).
[4] After some negotiations, Patel submitted a “revised letter of intent” (revised
letter) to Ring on January 12, 2018, stating in part that he was “only addressing
the items [where] there may be a difference of terms.” Id. at 64. The revised
letter provided for the payment of earnest money from Ring in the amount of
$25,000 “upon execution of a purchase and sale agreement.” Id. at 63. Patel
further stated in the revised letter that the final terms were to be “formalized in
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 4 of 10
[a] sales contract and approved by attorneys for Purchaser and Seller.” Id.
Patel and Ring both signed the revised letter on January 19, 2018.
[5] Negotiations continued and “different purchase agreements [were] sent back
and forth between the parties.” Id. at 57. Ring did not send the first proposed
purchase agreement to Patel until May 10, 2018. Patel discovered that the
terms set forth in that proposed purchase agreement differed in many respects
from those contained in the revised letter executed on January 19, 2018.
Consequently, on June 4, 2018, Patel’s counsel sent a letter to Ring’s attorney
stating in part that the proposed purchase agreement “was not acceptable.” Id.
at 68. Patel’s counsel pointed out that several issues remained unresolved
including the material terms of a license agreement for an electric sign that
would be placed on the property, along with a provision for an easement.
Thus, Patel did not sign Ring’s proposed purchase agreement, and Ring did not
tender any earnest money.
[6] On August 21, 2018, Ring filed a complaint for specific performance, alleging
that Patel refused to convey the property and failed to execute a purchase
agreement according to the material terms of the agreement. In the complaint,
Ring alleged that Patel had agreed to a sale price of $75,000 and to grant him
the right to place an advertising sign on the premises. Ring further contended
that the revised letter dated January 19, 2018, that he and Patel executed,
constituted a binding and enforceable contract. Thus, Ring asserted that Patel’s
failure to perform in accordance with the executed letter of intent amounted to
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 5 of 10
a breach of contract, and that specific performance is the appropriate remedy
because of the property’s unique characteristics.
[7] Patel denied the material allegations of the complaint and filed a counterclaim
against Ring, claiming that Ring’s complaint was “unreasonable, groundless,
and frivolous,” and that he was entitled to reasonable attorneys’ fees incurred in
defending against the action. Id. at 42.
[8] On September 30, 2019, Patel filed a motion for partial summary judgment,
claiming that he was entitled to judgment as a matter of law because Ring’s
complaint was based entirely on an “unenforceable agreement to make an
agreement,” as there was no meeting of the minds as to the material elements of
the proposed agreement. Id. at 48, 54.
[9] Following Ring’s opposition to the motion, the trial court heard argument on
August 18, 2020. The next day, the trial court granted Patel’s motion for partial
summary judgment. In its order, the trial court determined that Patel’s revised
letter differed significantly from the terms of the original letter and concluded
that the original letter and revised letter “were not a contract,” that the “words
of the documents clearly demonstrated each party’s intent to reach an
agreement to agree,” and “at best the two documents constituted an agreement
to agree.” Id. at 24.
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 6 of 10
[10] Ring now appeals. 2
Discussion and Decision
[11] We review summary judgment motions de novo, applying the same standard
as the trial court. Hartman v. BigInch Fabricators & Constr. Holding Co., Inc., 161
N.E.3d 1218, 1220 (Ind. 2021). That is, we draw all reasonable inferences in
favor of the non-moving party and summary judgment is appropriate where
there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Griffin v. Menard, Inc., 175 N.E.3d 811, 813
(Ind. 2021).
[12] Ring argues that the summary judgment order must be set aside because the
trial court erred in finding as a matter of law that a contract did not exist
between him and Patel. Ring asserts that because he and Patel signed the
revised letter on January 19, 2018, Patel breached the alleged contract by
refusing to proceed with the sale.
[13] We initially observe that a mere “agreement to agree” at some future time is not
an enforceable contract. Wolvos v. Meyer, 668 N.E.2d 671, 674 (Ind. 1996).
That is, “the so-called ‘contract to make a contract’ is not a contract at all.” Id.
at 675. Parties may, however, enter into an enforceable contract that requires
2 The trial court initially determined that Patel’s counterclaim was to remain pending. However, Patel filed a
motion to dismiss the counterclaim on May 20, 2021, which the trial court granted on June 3, 2021. Ring
then filed his notice of appeal on July 6, 2021.
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 7 of 10
them to execute a subsequent final written agreement. Id. at 674. But when one
enters into an agreement with the understanding that neither party is bound
until a subsequent formal written document is executed, no enforceable contract
exists until the subsequent document is executed. Id. at 675.
[14] The difference between an enforceable contract and an unenforceable
“agreement to make an agreement” is whether there is an agreement on all
essential terms such that the final document is understood to be a mere
memorial of the agreement. See id. at 674-75. If the document or contract that
the parties agree to make is to contain any material term that is not already
agreed upon, no contract has yet been made. Id. at 675. Although letters of
intent can be enforceable contracts, it is a question depending on the facts of
each case whether sufficient terms and language are included. Block v. Magura,
949 N.E.2d 1261, 1268 (Ind. Ct. App. 2011).
[15] To illustrate, in Equimart Ltd., Inc. v. Epperly, 545 N.E.2d 595 (Ind. Ct. App.
1989), a letter of intent stated the parties would “attempt, in good faith, to
negotiate a definitive purchase agreement” for the sale of certain stock. Id. at
598. That letter further provided that “consummation of the transaction here
contemplated . . . will be subject to the execution of delivery of a Final Agreement in a
form reasonably satisfactory to the parties and their respective counsel.” Id. (emphasis
added). We determined that the above language indicated that the parties
merely “agreed to agree” after a period of negotiation, and that the letter of
intent was not a binding purchase contract. Id.
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 8 of 10
[16] Like the circumstances in Equimart, various terms set forth in Ring’s original
letter of intent—that were also incorporated in the revised letter that Ring and
Patel executed on January 19, 2018—include similar statements regarding
intent and enforceability:
On behalf of Dr. Barry Ring . . . (Buyer), this letter of interest
sets forth certain business terms (but not all of the material terms and
conditions) upon which Buyer is prepared to purchase the abovereferenced Property from you, as the title holder of the Property
(“Seller”), subject to negotiation and execution of a formal Purchase and
Sale Agreement which would incorporate the business terms set
forth herein among other terms and conditions (“Purchase
Agreement”). This letter is being executed solely for the convenience
and future reference of the parties and their counsel, and it is not
intended and shall not be construed as a binding contract between the
parties; rather, it shall form the basis for negotiation of the
Purchase Agreement, which shall constitute the sole contract between
Seller and Buyer if and when executed and delivered.
Upon acceptance, Buyer would cause a Purchase Agreement, as
specified herein, to be prepared and delivered to Seller within ten
(10) business days after the date of execution and delivery hereof,
which Purchase Agreement would incorporate the terms of this
letter of interest and any other terms and conditions which Buyer
may propose.
This letter of interest is not intended to be and shall not constitute a
contract or binding agreement and shall not create any legal rights or
obligations between the parties.
It is intended that all legal rights and obligations between Buyer and
Seller (if any) would be created under and governed solely by the
Purchase Agreement if and when the same is fully executed by Buyer and
Seller.
Court of Appeals of Indiana | Memorandum Decision 21A-CP-1367 | January 20, 2022 Page 9 of 10
Appellant’s Appendix Vol. II at 59, 61 (emphasis added). In turn, the revised letter
stated that “[f]inal terms to be formalized in sales contract and approved by
attorneys for Purchaser and Seller.” Id. at 64.
[17] It is readily apparent that once the revised letter of intent was executed, it was
intended that Ring would submit a purchase agreement that would incorporate
the agreed-upon terms. And the executed revised letter makes it clear that the
parties’ rights and obligations would be governed “solely by the Purchase
Agreement” after the parties were in final agreement in a form that was
approved by their respective attorneys. Indeed, the parties specifically agreed
that the executed revised letter was not “intended to be and shall not constitute a
contract or binding agreement and shall not create any legal rights or obligations between
the parties.” Appellant’s Appendix Vol. II at 61 (emphasis added). Rather, the
parties contemplated further negotiation and a future agreement if they could
agree on all the material terms. And the designated evidence supports the
conclusion that the parties never arrived at a final agreement as to what the
various and material terms of a purchase agreement should be or were.
[18] Contrary to Ring’s contention, this is not an instance where the parties have
agreed to the essential terms of the contract and the subsequent execution of a
formal purchase agreement would merely memorialize the existence of that
contract. Moreover, even had all material terms been agreed upon, Ring did
not submit a proposed purchase agreement to Patel within ten days after the
revised letter had been executed.
Outcome: In reviewing the documents exchanged by Patel and Ring, it is apparent that
the revised letter executed by both on January 19, 2018, called for further
negotiation. At most, there was an agreement to agree to buy and sell the real
property; as such, under Indiana law, there was no enforceable contract.
Therefore, we conclude that the trial court properly granted partial summary
judgment for Patel.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: