Appellant did not breach agreement by failing to provide estoppel certificates and subordination agreements or by changing closing date

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This appeal concerns two contracts for the sale of a multi-tenant office park by Winterton, LLC (“Winterton”). The trial court granted a partial summary judgment to Investors against Winterton finding Winterton in breach of the contract and, following a trial on damages, entered a judgment against Winterton in the sum of $773,799.88. The trial court also granted summary judgment to Investors against Brown finding that the second contract did not become effective. Winterton appeals the trial court’s grant of partial summary judgment in favor of Investors, the trial court’s denial of Winterton’s cross-motion for summary judgment, and the trial court’s award of damages in favor of Investors and against Winterton. In addition, Brown appeals the trial court’s grant of summary judgment in favor of Investors, and the trial court’s denial of his motion for summary judgment and its grant of summary judgment in favor of Winterton. Winterton contends that the trial court erred in granting summary judgment in favor of Investors. In support of this claim, Winterton presents several issues, two of which are dispositive. Winterton’s restated issues are:

I. Whether the trial court erred by determining that Winterton breached its contract with Investors by failing to provide certificates of estoppel and subordination, non-disturbance and attornment agreements (“subordination agreements”).

II. Whether the trial court erred by determining that Winterton materially breached its purchase agreement with Investors by changing the closing date.

In addition, Brown, as Intervening Plaintiff/Appellant, presents three issues for our review. The first issue offered by Brown is the same issue we resolve in section I, above. Of the two remaining issues set forth by Brown, one is dispositive. Restated, the issue is:

III. Whether the trial court erred by determining that the contract between Winterton and Investors did not terminate or expire such that the contract between Winterton and Brown never came into effect.

Conclusion (slip op. at 19): We conclude that the trial court erred by entering summary judgment in favor of Investors and against Winterton. We conclude that Winterton did not breach the Purchase Agreement either by not providing estoppel certificates and subordination agreements to Investors or by changing the closing date. Thus, the trial court’s entry of summary judgment and damages in favor of Investors and against Winterton is reversed and summary judgment shall be entered in favor of Winterton. Further, we conclude that the trial court properly determined that the Purchase Agreement did not expire or terminate as required by the Back-up Purchase Agreement and, therefore, the Back-up Purchase Agreement did not come into effect. We affirm the trial court’s entry of summary judgment in favor of Investors and Winterton and against Brown.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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