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 Jan 24 2014, 6:16 am
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
ZACHARY J. EICHEL JOSHUA W. CASSELMAN
MICHAEL L. EINTERZ, JR. Rubin & Levin, P.C.
Einterz & Einterz Indianapolis, Indiana
Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JESS G. REVERCOMB, SR., )
)
Appellant/Defendant, )
)
vs. ) No. 49A02-1305-CC-447
)
YELLOW BOOK SALES AND )
DISTRIBUTION COMPANY, INC., )
)
Appellee/Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
Cause No. 49D11-1003-CC-12977
January 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Jess G. Revercomb, Sr., appeals the trial court’s judgment that he assumed liability
as both a corporate representative and as a personal guarantor when he signed five
advertising contracts with Yellow Book Sales & Distribution Company, Inc. (“Yellow
Book”) on behalf of R&G Construction. Finding that, based upon the unambiguous text
of the contract, Revercomb did assume liability as both a corporate representative and a
personal guarantor, we affirm.
Facts and Procedural History
From February 2007 to September 2008, Revercomb signed five Yellow Book
contracts for advertisements of R&G Construction in the Boone, Hamilton, and greater
Indianapolis telephone directories. Each contract had one signature line. On the February
2007 contract, Revercomb wrote both “president” and “owner” after his signature. Ex. 1.
On three other advertising contracts, Revercomb wrote “owner” after his signature. Ex. 2-
4. On the September 2008 contract, he wrote “president” after his name. Ex. 5.
Each contract was a standard Yellow Book form contract containing almost
identical language. See Ex. 1-5. Directly underneath Revercomb’s signatures on the five
contracts1 it is written “Authorized Signature Individually and for the Customer (Read
paragraph 15F[2] on the reverse hereof).” Ex. 1-5.
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The language below the signature line of the February 2007, August 2007, and January 2008
contracts is identically reproduced. Under the signature line of the February 2008 and September 2008
contracts, the language directs the signer to read “Paragraph 15” rather than “Paragraph 15F.” Ex. 4-5.
2
Although text under the signature line in the August 2007 contract directs the reader to Paragraph
15F, the relevant contractual language can actually be found in Paragraph 15G. Paragraph 15F is correct
in both the February 2007 and January 2008 contracts.
2
Paragraph 15 provides, in relevant part:
The signer agrees that he/she has the authority and is signing this agreement,
(1) in his/her individual capacity, (2) as a representative of the Customer, (3)
as a representative of the entity identified in the advertisement or for whose
benefit the advertisement is being purchased (if the entity identified in the
advertisement is not the same as the Customer or signer). By his/her
execution of this agreement, the signer personally and individually
undertakes and assumes, jointly and severally, with the Customer, the full
performance of this agreement, including payment of the amounts due
hereunder.
Id.
The front page of each contract also refers the signer to the terms and conditions on
the reverse side, with the following language in capitalized print:
THIS CONSTITUTES A CONTRACT FOR ADVERTISING WITH
YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC . . . .
IN THE NEXT EDITION OF THE ABOVE TELEPHONE
DIRECTORY(IES). THE TERMS AND CONDITIONS SET FORTH
HEREIN AND ON THE REVERSE HEREOF ARE AGREED TO BY
CUSTOMER AND SIGNER.
Id.
Also within paragraph 15, the contract stated:
This agreement supercedes [sic] any other verbal or written agreement
between Customer and Publisher. This agreement may not be changed
except by a writing signed by an authorized signatory of Customer and
Publisher.
Yellow Book published all advertisements under the contracts except for the 2008
Boone County contract, which was canceled. Tr. p. 14-15. R&G Construction failed to
pay Yellow Book a total owed amount of $11,003.74 for the published advertisements. Ex.
6. The terms and conditions of the advertising contracts further provide for the recovery
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of costs and expenses incurred by Yellow Book in the event of nonpayment, including
reasonable attorney fees.
Yellow Book filed its Amended Complaint on Contract and Guaranty against R&G
Construction and Revercomb. Appellee’s App. p. 1-3. The Complaint sought judgment
against both R&G Construction and Revercomb for the unpaid balance of Yellow Book’s
advertising contracts. In its Answer, R&G Construction admitted that it had entered into
the contracts and that the signature on the contracts was Revercomb’s. It, however, denied
that Revercomb had entered into a personal guaranty for R&G Construction’s unpaid
balance. Id. at 16-20.
Yellow Book moved for summary judgment on its amended complaint against R&G
Construction and Revercomb. Appellant’s App. p. 4. Revercomb filed a cross-motion for
summary judgment. Id. at 5.
After a hearing on the cross-motions for summary judgment, the trial court granted
Yellow Book’s motion for summary judgment against R&G Construction, denied Yellow
Book’s motion for summary judgment against Revercomb, and denied Revercomb’s cross-
motion for summary judgment against Yellow Book. Appellee’s App. p. 21-22. The court
entered judgment against R&G Construction in the amount of $11,003.74 principal,
$2,170.59 interest, and $4000.00 attorney’s fees. Id. at 24.
A bench trial was held on the only remaining issue—Revercomb’s personal liability.
At trial, Natalia Anderson, a paralegal and corporate representative of Yellow Book,
testified. According to Anderson, when securing a contract, Yellow Book sales
representatives generally point out the important aspects in a contract, which include the
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individual liability of the signer. Tr. p. 21-22. It is also Yellow Book’s general practice to
leave a copy of the contract with the customer.
Revercomb also testified at trial. According to Revercomb, the Yellow Book sales
representative only discussed each advertisement and told him to sign on the signature line.
Id. at 32. On cross-examination, Revercomb admitted to signing the contracts, but stated
that he did so as president of R&G Construction. Id. at 33-34. According to Revercomb,
he signed some contracts as “president” and others as “owner” because he signed them at
different times and was “probably doing some other work trying to survive our business .
. . .” Id. at 36.
The trial court entered an order finding that Revercomb “assumed liability as both
corporate representative and as a personal guarantor” and entered judgment against
Revercomb for $11,003.74, plus attorney’s fees of $3,575.55 and statutory interest.
Appellant’s App. p. 12-13.
Revercomb now appeals.
Discussion and Decision
Revercomb argues that the trial court erred when it awarded judgment against him
because no valid guaranty contract existed between Revercomb and Yellow Book.
Specifically, he argues that the trial court erred in finding that one signature could bind him
both as a corporate representative and as an individual. Our standard of review is well
settled. When a trial court has made findings of fact, we must first determine whether the
evidence supports the findings and then whether the findings support the judgment.
Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind. Ct. App.
5
2009), trans. denied. We will set aside findings only if they are clearly erroneous, that is,
“when the record contains no facts or inferences supporting them.” Id. To determine that
a finding or a conclusion is clearly erroneous, an appellate court’s review must leave it
with the firm conviction that a mistake has been made. Dinsmore v. Lake Elec. Co., Inc.,
719 N.E.2d 1282, 1285 (Ind. Ct. App. 1999). We neither reweigh the evidence nor assess
the credibility of witnesses, but consider only the evidence most favorable to the judgment.
Id.
Because Revercomb is appealing from a negative judgment, he may only prevail if
he can establish that “the judgment is contrary to law, that is, the evidence is without
conflict and all reasonable inferences to be drawn from the evidence lead only to one
conclusion but the trial court reached a different conclusion.” Ponziano Constr. Servs.,
Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 874-75 (citing Clark v. Hunter, 861 N.E.2d
1201, 1206 (Ind. Ct. App. 2007)).
A guaranty is “‘a promise to answer for the debt, default, or miscarriage of another
person.’” Grabill Cabinet Co., Inc. v. Sullivan, 919 N.E.2d 1162, 1165 (Ind. Ct. App.
2010) (quoting S-Mart, Inc. v. Sweetwater Coffee Co., Ltd., 744 N.E.2d 580, 585 (Ind. Ct.
App. 2001), trans. denied). The interpretation of a guaranty agreement is governed by the
same rules as the interpretation of other contracts. TW Gen. Contracting Servs., Inc. v.
First Framers Bank & Trust, 904 N.E.2d 1285, 1288 (Ind. Ct. App. 2009) (citing Kruse v.
Nat’l Bank of Indianapolis, 815 N.E.2d 137, 144 (Ind. Ct. App. 2004)). If the terms of a
contract are “‘clear and unambiguous, courts must give those terms their clear and ordinary
meaning.’” Everhart v. Founders Ins. Co., 993 N.E.2d 1170, 1174 (Ind. Ct. App. 2013)
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(quoting Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind. 2005)). In doing so,
we “interpret a contract so as to harmonize its provisions, rather than place them in
conflict.” Everhart, 993 N.E.2d at 1174. “‘We will make all attempts to construe the
language of a contract so as not to render any words, phrases, or terms ineffective or
meaningless.’” Id. (quoting Rogers v. Lockard, 767 N.E.2d 989, 992 (Ind. Ct. App. 2002)).
Moreover, “[t]he terms of the guaranty should neither be so narrowly interpreted so as to
frustrate the obvious intent of the parties, nor so loosely interpreted as to relieve the
guarantor of a liability fairly within their terms.” Kordick v. Merchs. Nat’l Bank & Trust
Co. of Indianapolis, 496 N.E.2d 119, 123 (Ind. Ct. App. 1986).
We must first look to the plain language of the contracts. Directly underneath where
Revercomb signed each contract, the text stated “Authorized Signature Individually and
for the Customer (Read paragraph 15F on the reverse hereof).” Ex. 1-5. Moreover,
paragraph 15 on the opposite side of each contract stated:
The signer agrees that he/she has the authority and is signing this agreement,
(1) in his/her individual capacity, (2) as a representative of the Customer, (3)
as a representative of the entity identified in the advertisement or for whose
benefit the advertisement is being purchased (if the entity identified in the
advertisement is not the same as the Customer or signer). By his/her
execution of this agreement, the signer personally and individually
undertakes and assumes, jointly and severally, with the Customer, the full
performance of this agreement, including payment of the amounts due
hereunder.
Id.
Revercomb argues that he only intended to sign the contracts as a corporate
representative of R&G Construction and not personally. However, his contention ignores
the plain language of the contracts. It is well established that “[t]he intent relevant in
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contract matters is not the parties’ subjective intents but their outward manifestation of it.”
Zimmerman v. McColley, 826 N.E.2d 71, 77 (Ind. Ct. App. 2005). “A court does not
examine the hidden intentions secreted in the heart of a person; rather it should examine
the final expression found in conduct.” Id.
The trial court relied upon Revercomb’s outward manifestation to be bound under
each of these contracts. Both under the signature line and in paragraph 15 of each contract,
the text stated that the signer was signing as both a representative of the Customer and in
his or her individual capacity. At trial, the only evidence Revercomb presented that he was
not personally bound under the contracts was that he signed two of the contracts as the
president of the company and the others as owner of the company. Tr. p. 32. Therefore,
the argument goes, he did not want to sign in an individual capacity. However, the plain
language of the contract directly conflicts with this statement. Revercomb’s argument is
an attempt to reweigh the evidence, which we may not do. The trial court’s determination
that Revercomb signed both personally and as a corporate representative was not clearly
erroneous based upon the unambiguous language of the contracts. Finally, Revercomb
wants us to adopt a rule requiring two signatures to create a guaranty contract. We decline
to do so when the language of the contract is unambiguous.
Affirmed.
RILEY, J., and MAY, J., concur.
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