FILED
Jun 29 2026, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Ed Carpenter Racing, LLC,
Appellant-Plaintiff,
v.
Milton “Todd” Ault, III, and VForward2, LLC,
Appellees-Defendants.
June 29, 2026
Court of Appeals Case No.
25A-CC-2721
Appeal from the
Marion Superior Court
The Honorable
Kurt Eisgruber, Judge
Trial Court Cause No.
49D06-2505-CC-22323
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 1 of 19
Opinion by Senior Judge Crone
Judges Mathias and Pyle concur.
Crone, Senior Judge.
Statement of the Case
[1] Ed Carpenter Racing, LLC, appeals the dismissal of its complaint for damages
against Milton “Todd” Ault, III, and VForward2, LLC. Concluding that the
trial court’s dismissal of the complaint was not error but that the dismissal
should not have been with prejudice, we affirm in part and reverse and remand
in part.
Issues
[2] We address two issues:
I. Whether the trial court erred by dismissing Ed Carpenter
Racing’s complaint against Ault; and
II. Whether the trial court erred by dismissing Ed Carpenter
Racing’s complaint against VForward2.
Facts and Procedural History
[3] In May 2025, Ed Carpenter Racing filed its complaint against Ault and
VForward2, seeking damages in the amount of $8,400,000. The complaint
alleged that Ault breached a personal guaranty to Ed Carpenter Racing and that
VForward2 breached a sponsorship agreement with Ed Carpenter Racing for
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 2 of 19
the 2024 NTT Indy Car Series. Alternatively, Ed Carpenter Racing claimed
that it should recover from both Ault and VForward2 for unjust enrichment.
[4] Ault and VForward2 filed a motion to dismiss the complaint. The court heard
argument on the motion and subsequently entered its order dismissing the
complaint with prejudice and entering final judgment in favor of Ault and
VForward2. In dismissing the complaint against Ault, the court determined
that (1) it lacked personal jurisdiction over Ault under Trial Rule 12(B)(2), (2)
Ed Carpenter Racing failed to state a claim against Ault under Trial Rule
12(B)(6), and (3) Ault was entitled to judgment on the pleadings under Trial
Rule 12(C). The court found the following:
1. As acknowledged in the Complaint, Defendant Ault is a
resident of Nevada. Comp. ¶ 3. Ault may be an active
participant in sponsoring Indy cars at the Indianapolis 500, but
under the facts and circumstances of this case, emails exchanged
between Defendant Ault and ECR negotiating a possible
guaranty are insufficient to establish a valid contractual basis for
personal jurisdiction over Defendant Ault under INTR 12(B)(2).
Indiana’s Statute of Frauds (Ind. Code § 32-21-l-l(b)(2)) requires a
signature by a guarantor on a guarantee which Plaintiff does not
evidence. Without a valid contractual basis, Plaintiff cannot
establish that Defendant Ault has sufficient minimum contacts in
Indiana to pursue this action as to Counts I and III. The Motion
to Dismiss is GRANTED under INTR 12(B)(2).
2. As previously discussed, the Personal Guaranty attached to
Plaintiff’s Complaint as Exhibit A was never signed by
Defendant Ault. In addition, he is not referenced in the
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 3 of 19
Sponsorship Agreement attached to Plaintiff’s Complaint as
Exhibit B which was also not executed. Since he was not a party
to the Sponsorship Agreement, he did not personally benefit from
Sponsorship Agreement, and consequently was not unjustly
enriched. For these reasons, Defendant Ault’s Motion is
GRANTED under INTR 12(B)(6) and INTR 12(C) as to both
Counts I and III.
Appellant’s App. Vol. 2, p. 8.
[5] Likewise, the court dismissed the complaint against VForward2, determining
that (1) Ed Carpenter Racing failed to state a claim against VForward2 under
Trial Rule 12(B)(6) and (2) VForward2 was entitled to judgment on the
pleadings under Trial Rule 12(C). The court found:
1. As discussed, the emails referenced in Plaintiff’s Complaint
and advanced by Plaintiff as evidence of offer and acceptance of
the terms of both the Personal Guaranty and the Sponsorship
Agreement, are nothing more than the parties attempting to
negotiate an agreement. VF2 never signed a Sponsorship
Agreement with ECR and w[as] never contractually bound to
ECR. To the extent that ECR placed RiskOn logos or any logos
related to the Sponsorship Agreement on [its] cars was a choice
made by ECR alone. For these reasons, Defendant VF2’s
Motion is GRANTED under INTR 12(B)(6) and INTR 12(C) as
to both Counts II and III.
1
Id. at 8-9. Ed Carpenter Racing now appeals the dismissal of its complaint.
1
By separate order issued simultaneously with this opinion, we deny Ed Carpenter Racing’s motion to strike
appellees’ appendix.
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 4 of 19
Discussion and Decision
I. Complaint against Defendant Ault
[6] Ed Carpenter Racing argues that the trial court erred by granting Ault’s motion
to dismiss pursuant to Trial Rule 12(B)(2) for lack of personal jurisdiction. The
existence of personal jurisdiction is a question of law that we review de novo.
LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 965 (Ind. 2006) (quoting Anthem Ins.
Cos., Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind. 2000), superseded
by rule as stated in LinkAmerica, 857 N.E.2d 961). Yet, whether personal
jurisdiction exists can hinge on facts concerning the defendant’s contacts with
the forum state, and where the trial court issues findings of jurisdictional facts,
we review those findings for clear error. Aquatherm GmbH v. Renaissance Assocs. I
Ltd. P’ship, 140 N.E.3d 349, 357 (Ind. Ct. App. 2020). Accordingly, we will
reverse the court’s factual findings only when the record contains no facts to
support them either directly or indirectly. Id.
[7] When a defendant challenges personal jurisdiction, the plaintiff is not only
permitted but required to present evidence (i.e., materials outside the pleadings)
to support its claim that personal jurisdiction over the defendant exists. Oswald
v. Shehadeh, 108 N.E.3d 911, 916 n.4 (Ind. Ct. App. 2018) (citing Keesling v.
Winstead, 858 N.E.2d 996, 1000 (Ind. Ct. App. 2006)). In fact, both parties are
permitted to file materials outside the pleadings, such as affidavits and exhibits,
to assist the court in adjudicating a Rule 12(B)(2) motion to dismiss. See
Oswald, 108 N.E.3d at 916 n.4 (citing Mid-States Aircraft Engines, Inc. v. Mize Co.,
Inc., 467 N.E.2d 1242, 1247 (Ind. Ct. App. 1984)). Although the plaintiff must
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 5 of 19
present evidence of personal jurisdiction, the defendant bears the ultimate
burden of proving lack of jurisdiction by a preponderance of the evidence,
unless the jurisdictional defect is apparent on the face of the complaint.
Aquatherm GmbH, 140 N.E.3d at 357 (quoting Wolf’s Marine, Inc. v. Brar, 3
N.E.3d 12, 15 (Ind. Ct. App. 2014)).
[8] “Indiana Trial Rule 4.4(A) is Indiana’s equivalent of a ‘long-arm statute.’”
Aquatherm GmbH, 140 N.E.3d at 357. In 2003, Trial Rule 4.4(A), which
contains a list of acts that can serve as a basis for jurisdiction, was amended to
also provide that “a court of this state may exercise jurisdiction on any basis not
inconsistent with the Constitutions of this state or the United States.” Our
Supreme Court has explained that, while the acts enumerated in Rule 4.4(A)
serve as a “handy checklist of activities that usually support personal
jurisdiction,” the new catchall language “was intended to, and does, reduce
analysis of personal jurisdiction to the issue of whether the exercise of personal
jurisdiction is consistent with the Federal Due Process Clause.” LinkAmerica,
857 N.E.2d at 967.
[9] More specifically, before an Indiana court can properly exercise personal
jurisdiction over a defendant, the Due Process Clause of the Fourteenth
Amendment mandates that the defendant have “‘certain minimum contacts
with [the state] such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Wash.,
326 U.S. 310, 316 (1945)). There are two types of personal jurisdiction: general
and specific. Aquatherm GmbH, 140 N.E.3d at 358.
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 6 of 19
A. General Jurisdiction
[10] Minimum contacts with a forum state that establish general personal
jurisdiction over a nonresident defendant are those contacts that are “so
‘continuous and systematic’ that the defendant should reasonably anticipate
being haled into the state’s courts for any matter.” Simek v. Nolan, 64 N.E.3d
1237, 1242 (Ind. Ct. App. 2016) (quoting LinkAmerica, 857 N.E.2d at 967). Ed
Carpenter Racing has not alleged that Ault, who is a resident of Nevada,
maintains a constant presence in Indiana that would support general
jurisdiction.
B. Specific Jurisdiction
[11] A state may exercise specific jurisdiction when a defendant has purposefully
availed itself of the privilege of conducting activities within the forum state and
the lawsuit relates to or arises out of those activities or contacts. LinkAmerica,
857 N.E.2d at 967. Analysis of the defendant’s minimum contacts sufficient to
create a substantial connection with the forum state focuses on the relationship
between the nonresident defendant, the forum, and the lawsuit. Ysursa v.
Frontier Pro. Baseball, Inc., 151 N.E.3d 275, 280 (Ind. Ct. App. 2020) (quoting
Walden v. Fiore, 571 U.S. 277, 283-84 (2014)), trans. denied. A defendant simply
having contact or a connection with people who reside in the forum state is not
enough to establish this substantial connection. Boyer v. Smith, 42 N.E.3d 505,
511 (Ind. 2015). And random, fortuitous, or attenuated contacts or the
unilateral activity of another party or of a third person are not sufficient to
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 7 of 19
establish specific jurisdiction over an out-of-state defendant. Simek, 64 N.E.3d
2
at 1243 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)).
[12] Ed Carpenter Racing contends that specific personal jurisdiction over Ault
exists because Ault has done business in this state in the following ways: (a)
agreed to the personal guaranty, (b) agreed to the sponsorship agreement, (c)
owned or controlled VForward2, (d) participated in the 2024 Indianapolis 500,
(e) took actions as the owner or controlling person of VForward2, and (f) sent
emails to Ed Carpenter Racing, an Indiana corporation. Appellant’s Br. pp. 43-44.
(a) Agreed to Personal Guaranty
[13] First, there is no dispute that Ault did not sign the personal guaranty contract.
Although Ed Carpenter Racing claims that the trial court has personal
jurisdiction over Ault “by and through Mr. Ault’s Personal Guaranty,” counsel
for Ed Carpenter Racing acknowledged at the hearing that the guaranty is not
signed or executed. Appellant’s Br. p. 39; Tr. Vol. 2, pp. 15-16.
[14] In order to circumvent the lack of signature on the personal guaranty, Ed
Carpenter Racing argues that Ault’s electronic signature on two emails
constitutes his signature on the guaranty. Appellant’s Br. pp. 45-47. The first
2
Even if a defendant’s contacts are sufficient to confer personal jurisdiction, due process also requires that
the assertion of jurisdiction over the defendant be reasonable. LinkAmerica, 857 N.E.2d at 967. Because we
conclude that Ault did not have sufficient minimum contacts with Indiana, we need not reach the
reasonableness inquiry.
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 8 of 19
of the two emails was purportedly sent by Ault in February 2025. A copy of the
purported email was neither attached to the complaint nor introduced as
evidence at the hearing in this case. Consequently, Ed Carpenter Racing has
presented no evidence of an electronic signature by Ault to support its assertion.
Not only was there no evidence of an electronic signature but also no address
3
from which the email originated or address to which the email was sent. We
further observe that the alleged email was sent in February 2025 after the 2024
racing season to which it pertained. See Appellant’s App. Vol. 2, pp. 24
(Guaranty), 31 (Sponsorship Agreement ¶ 4.1) (guaranty pertains to 2024 racing
season and refers to payment schedule in 2024 sponsorship agreement, which
required that payment be made in full by November 15, 2024).
[15] The second purported email was sent to Ault by someone else and thus would
not contain Ault’s electronic signature. Accordingly, we do not address it. See
Tr. Vol. 2, p. 18; Appellant’s App. Vol. 2, p. 17 (Complaint ¶ 12(a)B.).
[16] For his part, Ault points to the fact that the guaranty was never signed and that
there is not a single allegation that he did so. Exhibit 4 to VForward2’s
answer/counterclaim is an email dated March 6, 2024 from John Stewart as
president/managing partner of VForward LLC to Ault explaining that Ed
3
We note that even if we had evidence of Ault’s email address, that evidence may not be sufficient to show
that the email was authored by Ault. See Arnett v. Est. of Beavins by Beavins, 184 N.E.3d 679, 686 n.5 (Ind. Ct.
App. 2022) (quoting Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied) (observing that
email address alone might be insufficient to authenticate email messages as having been authored by person
linked to email address).
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 9 of 19
Carpenter Racing was requesting that Ault execute a personal guaranty.
Appellees’ App. Vol. II, p. 71. Ault responded to Stewart later that same day
that he would review the guaranty “but it’s unlikely that I would sign a personal
guarantee[, and] you should not do that either.” Id. at 70. Further, Ault deems
“nonsensical” Ed Carpenter Racing’s allegation that Ault would agree in 2025
“to guarantee something after all of the obligations were already defaulted” in
2024. Tr. Vol. 2, p. 37.
(b) Agreed to Sponsorship Agreement
[17] The sponsorship agreement does not reference Ault, contains a signature line
not for Ault or any of the entities Ed Carpenter Racing alleges are connected to
Ault but rather for “V-FORWARD2, LLC”, and is unsigned, undated, and
unexecuted. See Appellant’s App. Vol. 2, pp. 25-39; Appellant’s Br. p. 39. Ed
Carpenter Racing admits that, like the guaranty, the sponsorship agreement was
never signed. Tr. Vol. 2, pp. 15-16.
(c) Owned or Controlled VForward2, LLC and (e) Took Actions as Owner or
Controlling Person of VForward2, LLC
[18] Ed Carpenter Racing next asserts that Ault owned or controlled VForward2
and took actions in this capacity. Ed Carpenter Racing offers no evidence to
support its contention that Ault had some ownership or control of VForward2.
Ault asserts that he is not a member of VForward2 and that the company has
only two shareholders, John and Suzanne Stewart. Tr. Vol. 2, pp. 5, 11.
Nevertheless, merely owning or partially controlling a business entity is not
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 10 of 19
sufficient to subject a business owner to individual personal jurisdiction in the
state. Cf. LinkAmerica, 857 N.E.2d at 970 (determining that actions of
subsidiary corporation do not ordinarily establish personal jurisdiction over its
parent).
(d) Participated in 2024 Indianapolis 500
[19] Ed Carpenter Racing presented no evidence of Ault’s alleged participation in
the 2024 Indianapolis 500 or analysis of how that participation established the
minimum contacts necessary for personal jurisdiction.
(f) Sent Emails to Ed Carpenter Racing
[20] Ed Carpenter Racing alleges Ault further engaged in conduct including:
“[s]ending at least one email, and many other emails not referenced within the
Complaint[*], to and within the State of Indiana to Members of an Indiana
limited liability company, i.e., Ed Carpenter Racing[.]” Appellant’s Br. p. 44.
Other than the email purportedly sent by Ault that we addressed under the
heading (a) Agreed to Personal Guaranty, supra, Ed Carpenter Racing
presented no information or evidence for the trial court to examine on this
subject. Moreover, simply having contact with people who reside in the forum
state is not sufficient to establish specific personal jurisdiction over an out-ofstate defendant. Boyer, 42 N.E.3d at 511.
[21] In sum, Ed Carpenter Racing, though required to support its claim that
personal jurisdiction over Ault exists, has failed to offer any evidence of
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 11 of 19
minimum contacts or substantial connection of Ault to this state. Ault, on the
other hand, has met his burden of proving lack of jurisdiction by a
preponderance of the evidence. The record shows that he does not have
sufficient minimum contacts or a substantial connection with Indiana and that
he cannot be said to have purposely availed himself of the privilege of
conducting activities within the state. Therefore, the trial court did not err by
dismissing Ed Carpenter Racing’s complaint against Ault pursuant to Trial
Rule 12(B)(2).
[22] However, on this issue the court dismissed the complaint with prejudice, and
that was error. “A dismissal with prejudice is a dismissal on the merits.”
Brodnik v. Cottage Rents LLC, 165 N.E.3d 126, 128-29 (Ind. Ct. App. 2021). Yet,
a dismissal for lack of personal jurisdiction is not an adjudication on the merits.
O’Bryant v. Adams, 123 N.E.3d 689, 695 (Ind. 2019). Consequently, we remand
for the court to amend its order to a dismissal without prejudice as to Ault for
lack of personal jurisdiction under Trial Rule 12(B)(2).
[23] Further, we address the trial court’s dismissal of Ed Carpenter Racing’s claims
against Ault pursuant to Trial Rules 12(B)(6) and 12(C). The trial court’s
dismissal of the complaint against Ault for lack of personal jurisdiction means
the court lacked the power to act. Cf. Boyer, 42 N.E.3d at 508 (stating that
jurisdictional challenges require trial courts to address threshold question
concerning their power to act). Therefore, when the court, after determining
that it lacked personal jurisdiction over Ault, considered and ruled on Ault’s
motion under Trial Rules 12(B)(6) and 12(C), it did not have the power to do
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 12 of 19
so. See Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994)
(citing Suyemasa v. Myers, 420 N.E.2d 1334 (Ind. Ct. App. 1981)) (stating that
trial court lacking jurisdiction is without power to rule on T.R. 12(B)(6)
motion). Accordingly, we reverse the trial court’s grant of Ault’s motion to
dismiss under Rules 12(B)(6) and 12(C).
II. Complaint against VForward2, LLC
[24] The trial court granted with prejudice VForward2’s motion to dismiss pursuant
to Trial Rules 12(B)(6) and 12(C).
[25] As VForward2 did in this case, a defense of failure to state a claim upon which
relief can be granted can be raised under either or both Trial Rule 12(B)(6) and
Trial Rule 12(C). Mourning v. Allison Transmission, Inc., 72 N.E.3d 482, 487
(Ind. Ct. App. 2017). Generally, while a Trial Rule 12(C) motion for judgment
on the pleadings is substantive, a Trial Rule 12(B)(6) motion is essentially
procedural, and a Rule 12(B)(6) dismissal is without prejudice because the
plaintiff has a right to file an amended complaint. City of Boonville v. Anderson,
263 N.E.3d 727, 737 (Ind. Ct. App. 2025); see also Ind. Trial Rule 12(B) (“When
a motion to dismiss is sustained for failure to state a claim under subdivision
(B)(6) of this rule the pleading may be amended once as of right pursuant to
Rule 15(A) within ten [10] days after service of notice of the court's order
sustaining the motion and thereafter with permission of the court pursuant to
such rule.”).
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 13 of 19 [26] However, when a Trial Rule 12(C) motion for judgment on the pleadings raises
a defense of failure to state a claim upon which relief can be granted, the
motion for purposes of that defense is to be treated in the same manner as a
Trial Rule 12(B)(6) motion to dismiss for failure to state a claim. Mourning, 72
N.E.3d at 487. “The rationale for this rule is that a plaintiff’s right to amend a
complaint should not be based on whether the defendant’s challenge to its
sufficiency is brought under the guise of Trial Rule 12(B)(6) or Trial Rule
12(C).” Id.
[27] Here, the trial court erred by evaluating VForward2’s Trial Rule 12(C) motion
as separate from its Rule 12(B)(6) motion and dismissing Ed Carpenter Racing’s
complaint against VForward2 with prejudice. Accordingly, we will proceed
with our review, under Trial Rule 12(B)(6) standards, of whether Ed Carpenter
Racing failed to state a claim upon which relief can be granted against
VForward2, and if we determine that it did, we will remand the case to give Ed
Carpenter Racing an opportunity to amend its claim against VForward2 as
provided by Trial Rule 12(B).
[28] A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which
relief can be granted “‘tests the legal sufficiency of the claim, not the facts
supporting it.’” Estate of Morgan by Hullett v. Morgan, 263 N.E.3d 758, 762 (Ind.
Ct. App. 2025) (quoting Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015)),
trans. denied. In ruling on such a motion, the court must examine the pleadings
in the light most favorable to the nonmoving party and construe all reasonable
inferences in favor of that party. Id.
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 14 of 19 [29] We review de novo a Rule 12(B)(6) dismissal. City of Boonville, 263 N.E.3d at
737. And we will not affirm such a dismissal unless it is apparent that the
allegations in the disputed pleading are incapable of supporting relief under any
set of circumstances. John Simpson & Monroe LLC v. Brown Cnty. Bd. of Comm’rs,
213 N.E.3d 1081, 1083 (Ind. Ct. App. 2023) (quoting Thornton, 43 N.E.3d at
587). We look only to the complaint and no other evidence in the record to
make this determination. Gasbi, LLC v. Sanders, 120 N.E.3d 614, 617 (Ind. Ct.
App. 2019), trans. denied.
[30] Nevertheless, when reviewing a Rule 12(B)(6) motion, a court need not accept
as true allegations that are contradicted by other allegations or exhibits attached
to or incorporated in the pleading, conclusory, non-factual assertions, or legal
conclusions. Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind. Ct. App. 2007).
Moreover, it is well settled that “‘when a written instrument contradicts
allegations in the complaint to which it is attached, the exhibit trumps the
allegations.’” Id. (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend,
163 F.3d 449, 454 (7th Cir. 1998)). Thus, by attaching documents to the
complaint that indicate that it is not entitled to judgment, a plaintiff may plead
itself out of court. Id. (quoting N. Ind. Gun & Outdoor Shows, 163 F.3d at 455).
A. Count II – Breach of Contract
[31] Count II of the complaint alleges that VForward2 breached its contract with Ed
Carpenter Racing, namely the sponsorship agreement. See Appellant’s App.
Vol. 2, p. 20 (Complaint ¶¶ 19-21). It is well settled that to recover for a breach
of contract, a plaintiff must prove that: “‘(1) a contract existed, (2) the
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 15 of 19
defendant breached the contract, and (3) the plaintiff suffered damage as a
result of the defendant’s breach.’” Transp. Leasing/Cont., Inc. v. Northland Ins.
Co., 271 N.E.3d 180, 188 (Ind. Ct. App. 2025) (quoting Collins v. McKinney, 871
N.E.2d 363, 370 (Ind. Ct. App. 2007)). The question in this case hinges on the
existence of a valid contract, which requires offer, acceptance, consideration,
and manifestation of mutual assent. Martins v. Hill, 121 N.E.3d 1066, 1068
(Ind. Ct. App. 2019).
[32] In its complaint, Ed Carpenter Racing states that Exhibit B to the complaint is
an “authentic and complete copy” of the sponsorship agreement. Appellant’s
App. Vol. 2, p. 13 (Complaint ¶ 6). As we discussed in Issue I., supra, Exhibit B
is unsigned and undated, see id. at 25-39, and Ed Carpenter Racing concedes the
4
sponsorship agreement was never signed. Tr. Vol. 2, pp. 15-16. “Of particular
importance in the creation of a contract is that an offer must be extended, and
the offeree must accept it; the communication of acceptance is ‘crucial.’” Derr
Enters., LLC v. Union City Ind. Props., LLC, 253 N.E.3d 1129, 1134 (Ind. Ct.
App. 2025) (quoting Tchrs. Credit Union v. Cripe, 248 N.E.3d 1230, 1237 (Ind.
Ct. App. 2024), trans. denied). Nothing in the complaint or the attached exhibits
alleges acceptance by VForward2 of the sponsorship contract offered by Ed
4
Although Ed Carpenter Racing attempts to invoke the doctrines of part performance and promissory
estoppel as exceptions to the statute of frauds, we do not address these theories because neither of them were
raised in the complaint, as the trial court astutely noted. See Gasbi, 120 N.E.3d at 617 (in evaluating Rule
12(B)(6) motion we look only to complaint); see Tr. Vol. 2, p. 22.
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 16 of 19
Carpenter Racing. Consequently, the unexecuted sponsorship agreement
contained in Exhibit B to the complaint trumps Ed Carpenter Racing’s
complaint allegation that VForward2 agreed to the sponsorship agreement to
form a contract.
B. Count III – Unjust Enrichment
[33] Ed Carpenter Racing also challenges the trial court’s dismissal of its complaint
on Count III. In Count III, Ed Carpenter Racing alleges an alternative basis of
recovery against VForward2, namely unjust enrichment.
[34] In the absence of a contract, a party may recover under the theory of unjust
enrichment to recoup the “‘value of services rendered just as if there had been a
true contract.’” Troutwine Ests. Dev. Co., LLC v. Comsub Design & Eng’g, Inc., 854
N.E.2d 890, 897 (Ind. Ct. App. 2006) (quoting Kelly v. Levandoski, 825 N.E.2d
850, 860 (Ind. Ct. App. 2005), trans. denied), trans. denied. To prevail on a claim
of unjust enrichment, the plaintiff must show that it provided a benefit to the
defendant at the defendant’s express or implied request, that it expected
payment from the defendant, and that allowing the defendant to retain the
benefit without restitution would be unjust. Andrew Nemeth Props., LLC v.
Panzica, 271 N.E.3d 1100, 1114 (Ind. 2025) (quoting Reed v. Reid, 980 N.E.2d
277, 296 (Ind. 2012)).
[35] Here, the complaint contains no allegation that VForward2 impliedly or
expressly requested Ed Carpenter Racing to place its sponsor marks on Ed
Carpenter Racing’s race cars for the 2024 season. As it is apparent that the
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 17 of 19
allegations in Ed Carpenter Racing’s complaint are incapable of supporting
relief under any set of circumstances on its clam for unjust enrichment, the trial
court’s dismissal of this claim under Rule 12(B)(6) was proper. Consequently,
we remand to the trial court to allow Ed Carpenter Racing the opportunity to
amend its complaint as provided by Trial Rule 12(B).
[36] Finally, we would be remiss if we did not address footnote 9 in Ed Carpenter
Racing’s brief which sets forth the number of times Judge Eisgruber’s decisions
have been appealed to this Court or to our Supreme Court. See Appellant’s Br.
p. 35 n.9. We decide each case on its individual merit without reference to the
number of or outcome of prior appeals of a trial judge’s decisions. And we “‘do
not look favorably upon disparaging and disrespectful language in briefs’” with
regard to the trial courts of this state. Dridi v. Cole Kline LLC, 172 N.E.3d 361,
365 (Ind. Ct. App. 2021) (quoting Small v. Centocor, Inc., 731 N.E.2d 22, 31 (Ind.
Ct. App. 2000), trans. denied). The purpose of a brief is to inform and educate
the Court to assist in bringing the controversy to a proper resolution rather than
to engage in irrelevant commentary.
Conclusion
[37] Based on the foregoing, we conclude that there was no evidence that Ault
established a substantial connection between himself and this state as would
support personal jurisdiction. Therefore, we affirm the trial court’s dismissal of
Ed Carpenter Racing’s complaint against Ault under Trial Rule 12(B)(2) for
lack of personal jurisdiction but reverse the trial court’s entry of such with
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 18 of 19
prejudice and remand for entry of the dismissal without prejudice. We also
reverse the trial court’s dismissal of the complaint against Ault pursuant to Trial
Rules 12(B)(6) and 12(C).
[38] We further conclude that Ed Carpenter Racing’s complaint fails to plead
plausible claims against VForward2 for breach of contract and unjust
enrichment. Therefore, we affirm the trial court’s dismissal of the complaint
against VForward2 pursuant to Trial Rule 12(B)(6), reverse the trial court’s
dismissal of the complaint under Trial Rule 12(C), and remand the case to give
Ed Carpenter Racing an opportunity to amend its claim against VForward2 as
provided by Trial Rule 12(B).
[39] Affirmed in part and reversed and remanded in part.
Mathias, J., and Pyle, J., concur.
ATTORNEY FOR APPELLANT
Richard B. Kaufman
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Jeffrey M. Heinzmann
Heinzmann Law Office LLC
Fishers, Indiana
Robert B. Volynsky
Weltz Kakos Gerbi Wolinetz Volynsky LLP
Carle Place, New York
Court of Appeals of Indiana Opinion 25A-CC-2721 June 29, 2026 Page 19 of 19