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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: MICHAEL H. MICHMERHUIZEN Barrett & McNagny LLP Fort Wayne, Indiana ATTORNEY FOR APPELLEE: ERIC E. SNOUFFER Snouffer & Snouffer Fort Wayne, Indiana

FILED
Dec 30 2011, 9:11 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
TIM BRAUNER, Appellant, vs. RM & JP INVESTMENTS, INC. f/k/a TOOLS, DIES AND MOLDS CO., Appellee. ) ) ) ) ) ) ) ) ) )

CLERK

No. 02A04-1106-PL-321

APPEAL FROM THE ALLEN CIRCUIT COURT The Honorable Thomas J. Felts, Judge Cause No. 02C01-0912-PL-155

December 30, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Tim Brauner appeals the trial court's denial of his motion for partial summary judgment and grant of the motion for summary judgment filed by RM & JP Investments, Inc. ("RM & JP"), formerly known as Tools, Dies and Molds Co. ("TD & M"). Brauner raises two issues which we revise and restate as whether the court erred in granting RM & JP's motion for summary judgment and in denying Brauner's motion for summary judgment. We affirm in part, reverse in part, and remand. The relevant facts as designated by the parties follow. Brauner became employed by TD & M as Materials Manager. In November 1997, During Brauner's

employment, Robert Muhn was the President of TD & M, and Brauner reported directly to Muhn. In 2006, Muhn informed Brauner that TD & M was considering selling the company. Brauner became concerned about his employment with TD & M, and asked Muhn for a contract of employment. Muhn told Brauner that he was agreeable to a contract of employment, but never provided Brauner with a contract. In 2008, Brauner prepared drafts of a Letter of Understanding Regarding Employment ("Letter of Employment") and a Letter of Understanding Regarding Compensation upon Sale or Substantial Ownership Alteration of TD & M ("Letter of Compensation"). Muhn reviewed the agreements, made some revisions, and signed the agreements with an effective date of January 1, 2008. The Letter of Employment stated in part: This will confirm the understanding arrived at between us with respect to the employment of Tim Brauner with TDandM (the Company) in the event the Company is sold or the Company's ownership interest is substantially altered. ***** 2

Employment with the Company, and the compensation received as a result thereof, are of the extreme importance to the Company and the Employee, and the Employee desires limited assurance that such compensation will remain forthcoming in the event the Company is sold or the Company's ownership interest is "substantially altered", in the future. (Substantially altered is defined as a change of more than 40% ownership in common stock of the Company) The parties to this agreement, therefore, agree as follows: 1. Effective Term. In the event the Company is sold or the Company's ownership interest is substantially altered, this agreement becomes effective for a period of three (3) years from the date of sale or substantial alteration of the Company's ownership interest. (The Effective Term) 2. Limited Compensation Guaranty. In the event the Company is sold or the Company's ownership interest is substantially altered, Employee is guaranteed for the effective term of this Agreement a compensatory salary of not less than $54,600 per year (Guaranteed Salary) plus any bonuses or company benefits that were given prior, whether or not Employee is retained in the employment of the Company. Notwithstanding the foregoing, Employee is not entitled to his Guaranteed Salary for the Effective Term if he voluntarily terminates employment with the Company without "good cause". Good Cause for voluntary termination of employment would be if Employee's job responsibilities were substantially reduced without his input and/or consent. At the expiration of the Effective Term, or upon voluntary termination of employment with the Company by Employee without good cause, this Agreement and all guarantees contained herein shall terminate without further liability on the part of the Company. 3. Restrictive Covenant. For the Effective Term of this Agreement, Employee may Be retained in the capacity of Director of Materials and Manufacturing to the Company at the Guaranteed Salary. During the term of such employment, Employee shall devote his time and effort to furtherance of the Company's affairs and shall conduct himself in accordance with the directions of the Company's Board of Directors. 4. Agreement: This agreement coexists with, and supplements, preexisting employment contracts and agreements entered into between the Company and Employee, and shall be construed in existence and in accordance therewith. 3

Appellant's Appendix at 129-130. The Letter of Compensation stated in part: This will confirm the understanding arrived upon between us with respect to the compensation Tim Brauner will receive from TD& M (the Company) in the event the Company is sold or the Company's ownership interest is substantially altered. This agreement made effective January 1, 2008 between the Company and Tim Brauner. The parties to this agreement, therefore, agree as follows: 1. At such time that the Company is sold or ownership interest is substantially altered (substantially altered is defined as a change of any kind to more than 40% ownership in common stock of the Company), Tim Brauner will receive monies equal to 5% of the net proceeds of the sale of the Company, when such net proceeds are realized, payable in a lump sum or increments, at the discretion of Tim Brauner. 2. Agreement: The terms of this agreement are encompassed by this written agreement that all concerned parties are signing. No other terms or agreements affecting this agreement exist, or were made, either verbally or in writing. 3. This agreement will be interpreted by Indiana laws. Id. at 131. On June 12, 2009, RM & JP filed Articles of Amendment with the Indiana Secretary of State and began operating under its current name, RM & JP, instead of TD & M.1 At some point in 2009, RM & JP entered into a transaction with Cummings

1

Muhn's deposition reveals the following exchange: When was RM & JP Investments, Inc., that named entity, formed, if you know? It was negotiated during the sale of the company that by releasing the company name of TD&M, we would have to have a different name is all. So it was basically a name change.

Q. A.

4

Holdings, LLC ("Cummings") in which Cummings operated as TD & M at the same location, with the same equipment, and engaged in the same business.2 RM & JP agreed to sell assets to Cummings in exchange for Cummings assuming certain debt of RM & JP and agreeing to pay RM & JP certain funds over time which would not equal nor exceed the outstanding obligations retained by RM & JP. RM & JP sold the rights to the "names Tools, Dies & Molds, Co. and TD & M" to Cummings. Id. at 125. After the transaction, RM & JP still owned two pieces of equipment, a promissory note, and two accounts receivable. "The sale to Cummings did not involve the sale, exchange or transfer of any stock in [RM & JP] and the shareholders of [RM & JP] are identical in both identity and shares held now as they were both at the time of the asset sale and January 1, 2008." Id. at 31. Brauner did not receive five percent of the net proceeds of any sale between TD & M and Cummings. After the transaction, when someone would call Muhn, he would state that "[t]he company's been purchased and it was now under Cummings LLC or whatever." Id. at 46. However, Muhn also told Brauner: "[W]e didn't sell the company. You were told

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