MEMORANDUM DECISION
Case Summary and Issue
[1] Petroleum Traders Corporation (“PTC”) entered into a fuel futures contract (“Agreement”) with Fine Enterprises, Inc. and Dharminder Sethi
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(collectively “FEI”). Subsequently, PTC filed a complaint alleging FEI breached the Agreement. PTC then filed a motion for summary judgment which the trial court granted. FEI now appeals, raising one issue for our review which we restate as whether the trial court erred by granting PTC summary judgment. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] On March 6, 2020, PTC and FEI entered into the Agreement. Pursuant to the Agreement, PTC agreed to sell, and FEI agreed to purchase, 42,000 gallons of fuel per month at the fixed price of $1.3740 dollars per gallon.
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PTC in turn purchased fuel futures anticipating FEIs performance of the Agreement. The Agreement includes a “Margin Call” provision in Section 12, which requires that a payment be made if the Agreements fair market value “falls below a set amount based on the market price of fuel being purchased.” Exhibits, Volume 2 at 6. Section 12 states:
[FEIs] margin threshold amount shall be $100,000.00 (the “Threshold”). [PTC] shall have the right, in its sole discretion, to make a margin call if [FEIs] accounts’ mark-to-market position exceeds the Threshold, due to unfavorable price movement or other unforeseen events. For purposes of this Agreement all prior and subsequent fixed contract positions shall be included in calculating any margin call pursuant to this Section 12 and in calculating any cost or loss pursuant to Sections 13, 14, or 15 hereunder. In the event [PTC] makes a margin call, [FEI] shall within 24 hours remit a cash margin payment by wire transfer. In the event [FEI] fails to make the cash margin payment in a timely manner, [PTC] shall be entitled to terminate this Agreement and/or pursue any and all available remedies at equity or law․
Appellants Appendix, Volume II at 64. The Agreement also includes Section 19 which dictates methods of communication between the parties and requires:
[a]ny notice, designation, consent, delivery, approval, offer, acceptance statement, request, or other communication required or allowed under this Agreement (“Notice” or in the verb form “Notify”) shall be in writing. Any action required under this Agreement that is a term within the definition of “Notice” also shall be in writing. All notices required in this Agreement shall be deemed effective if made in writing and delivered to the recipients address listed on the first page of this Agreement by any of the following means: (i) hand delivery, (ii) registered or certified mail, postage prepaid, with return receipt requested, (iii) first class or express mail, postage prepaid, (iv) overnight courier service. Notice made in accordance with this paragraph shall be deemed delivered upon receipt if delivered by hand, on the third business day after mailing if mailed by first class, registered, or certified mail, or on the next business day after mailing or deposit with an overnight courier service if delivered by express mail or overnight courier. Refusal by a party to accept a Notice shall not affect the giving of the Notice.
Id.
[3] On March 23, 2020, a drop in fuel prices caused FEIs mark-to-market position to increase by $302,496.60. That same day, PTC employee Haris Latic contacted FEI by telephone and discussed whether FEI would be able to make its April fuel purchase. See Ex., Vol. 2 at 19-20. Shortly following the phone conversation between Latic and FEI, PTC employee Carly Adams emailed FEI regarding a Margin Call. The email stated:
Due to the market dropping, [FEI] owes $203,000 of margin call due [PTC] tomorrow.
Id. at 21. The email also included an electronic attachment titled “Margin Call Statement” which provided a Margin Call requirement summary:
Id. at 22.
[4] The following day, FEI and Latic had a second telephone conversation and the following exchange regarding the Margin Call occurred:
[Latic]: And its normal healthy business practice[.]
[FEI]: Do I have to learn anything ․ does this have to do anything with me or no?
[Latic]: Correct correct. Well, as you can see on here, if you refer to your contract Paragraph 12 for example, [PTC] carries $100,000 threshold for every customer that has a firm price contract with us in house.
[FEI]: Ok[.]
[Latic]: And the remaining exposure, we apply to the customer and ask them to reconcile to [PTC]. Which means, in this particular instance, [FEI] would wire $203,000 to [PTC].
[FEI]: Ok[.]
[Latic]: This is a security deposit. This money is yours, it belongs to you as the futures in gasoline[.]
[FEI]: I dont have $200,000 to give it to you.
[Latic]: OK, what do you have, what can you work with[?]
[FEI]: I cannot give you anything. Right now everything is super slow and we are struggling already. I cannot even give one penny.
Id. at 24. Subsequently, PTC and FEI initiated a video teleconference during which the parties again discussed whether FEI would be able to fulfill its April fuel purchase obligation or whether they needed to roll over the fuel into future months. On March 25, the parties amended the Agreement and moved FEIs April fuel obligation to May. However, FEI never made any form of payment regarding the Margin Call.
[5] On May 5, 2020, PTC notified FEI, via FedEx courier, of its intent to terminate the Agreement and liquidate the future positions based on FEIs alleged breach of contract.
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The notice, in relevant part, provided:
As you are aware, as a result of the negative movement in the gasoline market, PTC exercised its right pursuant to Section 12 of the [Agreement] and made a margin call in the approximate amount of $120,000. [FEI] refused during multiple conversations and correspondence to comply with its obligations under the [Agreement] to pay the margin call. It was expressly conveyed to you on multiple occasions that [FEIs] failure to pay the margin call was a breach of [FEIs] obligations under the contract and would result in the termination of the contract and that the liquidation provisions of Section 13 would then apply.
The failure and refusal of [FEI] to pay the margin call required under the [Agreement] constitutes a clear and obvious breach of contract. As result of the failure to remit the margin call in accordance with the [Agreement], PTC was forced to terminate the [Agreement] in accordance with the terms conditions contained therein and suffered significant damages.
Id. at 45. The notice also included a demand for payment of damages in the amount of $294,383.00. FEI did not tender any payment to PTC with respect to the demand.
[6] On October 20, 2020, PTC filed a complaint alleging FEI was in breach of contract for failing to timely pay the Margin Call and for failing to purchase fuel. Subsequently, PTC filed a motion for summary judgment. Following a hearing, the trial court issued an order granting PTCs motion for summary judgment in part, finding FEI in breach of contract for failing to pay the March 23 Margin Call.
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However, the trial court withheld entry of judgment until it received a computation of damages. On January 4, 2022, the trial court entered its final order in favor of PTC in the amount of $223,262.85. See Appellants App., Vol. 2 at 13-14. FEI now appeals.
Discussion and Decision
I. Standard of Review
[7] When reviewing the grant or denial of summary judgment, we apply the same test as the trial court: summary judgment is appropriate only if the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR Pizza Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). Our review is limited to those facts designated to the trial court, T.R. 56(H), and we construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013). On appeal, the non-moving party carries the burden of persuading us the grant of summary judgment was erroneous. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). A grant of summary judgment will be affirmed if it is sustainable upon any theory supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind. 2015).
[8] At the heart of this appeal is the interpretation and construction of a contract, which presents questions of law. John M. Abbott, LLC v. Lake City Bank, 14 N.E.3d 53, 56 (Ind. Ct. App. 2014). Cases involving contract interpretation are particularly suitable for summary judgment. Id. And because the interpretation of a contract presents a question of law, it is reviewed de novo. Jenkins v. S. Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App. 2013), trans. denied.
[9] We review contracts as a whole, attempting to ascertain the parties’ intent and making every attempt to construe the language of the contract “so as not to render any words, phrases, or terms ineffective or meaningless.” Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind. Ct. App. 2007). We assign a contracts clear and unambiguous terms their plain and ordinary meaning. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). When a contracts terms are ambiguous or uncertain, however, and its interpretation requires extrinsic evidence, its construction is left to the factfinder. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). A contract is ambiguous if reasonable people would disagree as to the meaning of its terms, Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), and we construe any ambiguity against the drafter, MPACT Constr. Grp., LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004).
II. Breach of Contract
[10] The trial court found FEI to be in breach of contract for failing to pay PTCs March 23 Margin Call.
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Under Section 12 of the Agreement:
[PTC] shall have the right, in its sole discretion, to make a margin call if [FEIs] accounts’ mark-to-market position exceeds the Threshold, due to unfavorable price movement or other unforeseen events.
Appellants App., Vol. 2 at 64. FEI argues that a Section 12 Margin Call “is a ‘notice’ or ‘communication required or allowed’ by the Agreement” and therefore subject to Section 19. Appellants’ Brief at 23. And pursuant to Section 19:
All notices required in this Agreement shall be deemed effective if made in writing and delivered to the recipients address listed on the first page of this Agreement by any of the following means: (i) hand delivery, (ii) registered or certified mail, postage prepaid, with return receipt requested, (iii) first class or express mail, postage prepaid, (iv) overnight courier service.
Appellants App., Vol. 2 at 64. FEI contends that because PTC sent the Margin Call demand via email, “PTC failed to serve or deliver any legally effective notice or demand for margin call payment as consistent with the requirements of Section 19.” Appellants’ Br. at 23.
[11] “In construing a contract, we presume that all provisions were included for a purpose, and, if possible, we reconcile seemingly conflicting provisions to give effect to all provisions.” Magee v. Garry-Magee, 833 N.E.2d 1083, 1092 (Ind. Ct. App. 2005). We must accept an interpretation that harmonizes all the various parts so that no provision is deemed to conflict with, to be repugnant to, or to neutralize any other provision. Id. Generally, when a contract contains general and specific provisions relating to the same subject, the specific provision controls. Id. However, here, Section 12 imposes no independent or specific requirements regarding the form, service, communication, or delivery of a Margin Call demand. See Appellants App., Vol. 2 at 64. Further, Section 19 governs any “notice, designation, ․ statement, request, or other communication required or allowed under this Agreement.” Id. Therefore, we conclude that the form of a Margin Call demand is governed by Section 19 and PTC emailing FEI the Margin Call demand was contrary to Section 19 and a breach of the Agreement.
[12] However, we must determine whether PTCs breach was material. Where a party is in material breach of a contract, he may not maintain an action against the other party or seek to enforce the contract against the other party if that party later breaches the contract. Harvest Life Ins. Co. v. Getche, 701 N.E.2d 871, 875 (Ind. Ct. App. 1998), trans. denied. An immaterial breach, on the other hand, should not be allowed to result in a windfall for the non-breaching party by excusing performance. See Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 1042, 1049 (Ind. Ct. App. 2003). A material breach is one that goes to the heart of the contract, and whether a breach is material is generally a question of fact. Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 175 (Ind. Ct. App. 2007). When determining whether a breach is material, we consider the following factors:
(A) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(B) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(C) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(D) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and
(E) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Ream v. Yankee Park Homeowners Assn, Inc., 915 N.E.2d 536, 543 (Ind. Ct. App. 2009), trans. denied.
[13] Here, PTC sent FEI email notification of the Margin Call demand rather than giving written notice via any of the methods outlined in Section 19. However, FEI does not argue that it failed to receive the notice, or that the form of the notice in some way deprived FEI of its ability to pay the Margin Call in a timely manner. Therefore, FEI does not show that it was substantially deprived of a benefit that it reasonably expected. Further, the benefit of which it was deprived was not monetary in nature nor was it related to the main purpose of the contract, purchasing fuel. There is also no indication PTCs actions were done in bad faith. PTC sent FEI an email regarding the Margin Call as well as contacted them via phone the next day. And although Section 12 provides that FEI was required to make the Margin Call payment within twenty-four hours of the Margin Call, PTC gave FEI substantially more time to complete the Margin Call before terminating the Agreement.
[14] We find that the designated evidence establishes that the factors weigh in PTCs favor. Under these circumstances we conclude as a matter of law that PTCs failure to send the Margin Call demand pursuant to the requirements of Section 19 did not constitute a material breach of the Agreement. See A House Mechs., Inc. v. Massey, 124 N.E.3d 1257, 1263 (Ind. Ct. App. 2019). Therefore, PTC was not precluded from maintaining an action against FEI. And because FEI does not otherwise challenge the propriety of summary judgment, the trial court did not err by granting PTC summary judgment.
Conclusion
[15] We conclude that PTC emailing FEI the Margin Call demand constituted a breach of the Agreement; however, that breach was immaterial and therefore PTC was not precluded from bringing an action against FEI. The trial court did not err in granting PTC summary judgment. Accordingly, we affirm.
[16] Affirmed.
FOOTNOTES
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. Prior to the Agreement, Sethi had a Personal Guaranty Agreement guaranteeing his payment and personal financial responsibility for all present and future obligations of FEI to PTC. See Exhibits, Volume 2 at 11-12.
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. The contract period was April 2020 to December 2020 for a total of 378,000 gallons of fuel.
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. Section 5 of the Agreement provides the default provisions and states:For purposes or this Agreement, [FEIs] default includes (i) failure to timely pay any amount due pursuant to this Agreement; (ii) the making of any false or inaccurate representation in this Agreement; (iii) failure to take delivery or ratable delivery of any quantity of Product during the Delivery Period; and (iv) the failure to observe or comply with any provision or covenant in this Agreement. In the event of [FEIs] default, in addition to the remedies set forth herein this Agreement, [PTC] may seek all legal and equitable [remedies].Appellants App., Vol. 2 at 63.
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. The trial court granted the motion for summary judgment in part, concluding that although FEI was in breach of contract for failure to pay the Margin Call, FEI was not in breach for failing to purchase fuel.
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. FEI does not argue that its failure to pay the Margin Call demand was not a breach of the Agreement.
Robb, Judge.
Pyle, J., and Weissmann, J., concur.