NIKISH SOFTWARE CORPORATION et al v. MANATRON, INCORPORATED
Filing
163
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - Manatron's Motion for Summary Judgment is GRANTED with respect to Nikish and Bharwani's tortious interference with contract claim, tortious interference with a business relationship claim, and defamation claim. The Motion is DENIED with respect to the breach of contract claim. Signed by Judge Tanya Walton Pratt on 7/8/2011. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NIKISH SOFTWARE CORPORATION AND )
KISHIN BHARWANI,
)
)
Plaintiffs/Counterdefendants,
)
)
vs.
)
)
)
MANATRON, INC.,
)
Defendant/Counterclaimant.
)
Case No. 1:07-cv-0358-TWP-MJD
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Manatron, Inc.’s (“Manatron”) Motion for
Summary Judgment. On December 1, 2006, Manatron sent a letter to a majority of the county
auditors in Indiana, claiming that it had “credible evidence” that Nikish Software Corporation’s
(“Nikish”) tax software was a “misappropriated derivative copy” of Manatron’s own tax
software, meaning “Manatron would own [the software] and any offer or sale of [the software]
by Nikish would be illegal.” In response, Nikish and its President and CEO, Kishin Bharwani
(“Bharwani”), filed suit against Manatron for defamation, tortious interference with a business
relationship, tortious interference with a contractual relationship, and breach of contract. For the
reasons set forth below, Manatron’s Motion for Summary Judgment (Dkt. 150) is GRANTED in
part and DENIED in part.
I. BACKGROUND
A.
Nikish and Manatron work together – and then sever ties
This dispute arises out of a competitive business relationship between two tax software
developers – Nikish and Manatron. Manatron provides property tax software, appraisal, and
other services to state and local governments. Moreover, Manatron has a significant footprint in
the Indiana market, providing some form of software and services to more than 80 Indiana
counties. Nikish develops software in the field of real estate, including tax software for use by
local governments. Before becoming adversaries in the market for tax software, Manatron and
Nikish worked together on numerous ventures.
The parties’ relationship formally began in 2001, when Nikish and Manatron entered into
a contract relating to the development of software for a property appraisal and tax system in
Dauphin County, Pennsylvania. The parties apparently completed their duties under this
agreement without incident. In 2003, the parties entered a similar agreement for a property
appraisal and tax system in Baltimore, Maryland. This agreement did not go as smoothly, and
the parties’ relationship soon began to fray. Accordingly, on October 14, 2005, the parties
entered into a “Settlement, Release, and Business Service Agreement” to discharge all duties and
obligations owed under the Baltimore contract (“Settlement Agreement”).
Significantly, the Settlement Agreement terminated all non-compete and non-solicitation
obligations between Nikish and Manatron. To that end, the Settlement Agreement expressly
gave Nikish and Bharwani the freedom to do business with “any person or entity,” regardless of
any prior or potential relationship the third party may have had with Manatron. That said, Nikish
was still bound by a duty not to disclose or reproduce Manatron’s confidential and proprietary
information, including its MVP tax software (“MVP”).
Soon after the Baltimore contract was terminated, Nikish began developing its own tax
software called RMS 2.0 (“RMS”) to compete with MVP. In early 2006, Nikish began shopping
RMS to various Indiana counties. On July 19, 2006, Nikish demonstrated RMS to employees of
2
Bartholomew County using various screen shots. At this time, however, RMS was still in a
developmental stage, and was therefore demonstrated as a “work in progress.”
In August 2006, Nikish responded to a Request for Proposal (“RFP”) for Vigo County,
Indiana by offering its RMS product. At the time of Nikish’s response, Vigo County was one of
Manatron’s Indiana clients. Manatron ultimately learned that Nikish was marketing RMS after
reviewing the Vigo County RFP response. According to Manatron, the response raised
significant red flags and, for a variety of reasons, Manatron believed that Nikish’s nascent RMS
product was nothing more than a derivative work of its own MVP product. According to
Manatron, five factors led to this conclusion: (1) “the quick delivery turnaround time provided in
the response to RFP”; (2) “Manatron’s knowledge of Nikish’s operating structure and
performance ability”; (3) “the use of Manatron naming conventions”; (4) “the use of former
Manatron personnel intimately familiar with the MVP code”; and (5) “Nikish’s possession of the
MVP code through its business dealings with Manatron.” (Dkt. 151 at 8).
C.
Manatron’s letter
On December 1, 2006, Manatron sent a letter (“Letter”) to 56 of its Indiana MVP
customers – all Indiana county auditors or treasurers – as well as the Indiana Department of
Local Government Finance (“DLGF”). In doing so, Manatron asserted the statement that is at
the heart of the present dispute:
Rather this letter is being sent because Manatron also has credible evidence
that the RMS . . . system itself is nothing more than a misappropriated
derivative copy of the Manatron MVP system in Indiana. As such
Manatron would own it and any offer or sale of RMS . . . by Nikish would be
illegal.
Moreover, Manatron warned that any purchase of RMS “would likely result in legal and
3
operational gridlock.” The Letter was drafted by Marty Ulanski (“Ulanski”), Manatron’s
executive vice president of operations, with the input of other members of Manatron’s executive
team. To this day, Manatron contends that the Letter was factually accurate, fair, and
reasonable. In Nikish’s mind, of course, the Letter was nothing more than a transparent gambit
to fend off competition in the Indiana market.
Prior to mailing the Letter, Manatron held intra-company discussions and reviewed
Nikish’s Vigo County RFP response, but did not contact Nikish or any of its agents because it
felt that “any discussions would prove fruitless.” When asked point-blank what investigation
Manatron undertook prior to sending the Letter, Ulanski testified, “I got a copy of the RFP, we
read the RFP, took it at face value and we deduced from our experience . . .that . . . there is no
practical way that [Nikish] could enter the market in such a short period of time without having
taken a derivative of our code.”
Nikish contends that the threatening nature of the Letter deterred many Indiana counties
from using RMS. Notably, the Letter has not been altogether fatal to Nikish’s Indiana business
prospects. For instance, on February 26, 2007, Nikish signed its first contract involving RMS
with Clinton County, Indiana.
D.
Procedural history
In March 2007, Nikish brought the present action against Manatron based on the Letter.
On September 15, 2008, roughly one and a half years later, Manatron filed a motion for leave to
assert a counterclaim for, among other things, copyright infringement. In doing so, Manatron
alleged that RMS was nothing more than a misappropriated derivative copy of MVP. The Court
ultimately disagreed, granting Nikish’s motion for summary judgment as to Manatron’s
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copyright infringement claim and finding that “no genuine issues of material fact exist as to
Nikish’s alleged infringement.” (Dkt. 139 at 17).1 At all times, Nikish has maintained that RMS
“is not derived in any way from” MVP or any other Manatron software. (Dkt. 156 at 4).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews
“the record in the light most favorable to the nonmoving party and draw[s] all reasonable
inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation
omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest
on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is
a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation
omitted). “In much the same way that a court is not required to scour the record in search of
evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on
the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and
internal quotations omitted). Finally, “neither the mere existence of some alleged factual dispute
between the parties nor the existence of some metaphysical doubt as to the material facts is
sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group, Inc.,
129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
1
The Court did, however, deny Nikish’s motion as to an unfair competition claim brought
by Manatron. (Dkt. 139 at 22).
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III. DISCUSSION
As mentioned, Nikish and Bharwani have brought four claims against Manatron: (1)
tortious interference with a contractual relationship; (2) tortious interference with a business
relationship; (3) defamation; and (4) breach of contract, specifically the Settlement Agreement.
Each claim is addressed in turn below.
A.
Tortious interference with contract
The elements of an action for tortious interference with a contract are: (1) the existence
of
a valid and enforceable contract; (2) defendant’s knowledge of the existence of the contract;
(3) defendant’s intentional inducement of breach of the contract; (4) the absence of justification;
and (5) damages resulting from defendant’s wrongful inducement of the breach. Melton v.
Ousley, 925 N.E.2d 430, 440 (Ind. Ct. App. 2010) (citing Levee v. Beeching, 729 N.E.2d 215,
221 (Ind. Ct. App.2000)). Nikish and Bharwani’s claim falters on the first element. At the time
of the Letter, Nikish did not have a single contract in place involving RMS. Indeed, Nikish’s
first contract for RMS was not signed until almost three months after the Letter was
disseminated, thus warranting summary judgment on this claim.
B.
Tortious interference with a business relationship
To prevail on its claim of tortious interference with a business relationship, Nikish and
Bharwani must show: (1) the existence of a valid relationship; (2) defendant’s knowledge of the
existence of the relationship; (3) defendant’s intentional interference with that relationship; (4)
the absence of justification; and (5) damages resulting from the defendant’s wrongful
interference with the relationship. Government Payment Service, Inc. v. Ace Bail Bonds, 854
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N.E.2d 1205, 1209 (Ind. Ct. App. 2006) (citing Felsher v. Univ. of Evansville, 755 N.E.2d 589,
598 n.21 (Ind. 2001)). In addition to these five elements, a claim of tortious interference with a
business relationship “requires some independent illegal action.” Id. (citing Brazauskas v. Fort
Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003)).
Nikish emphasizes that the “illegal action” requirement has been interpreted loosely by
Indiana courts, encompassing a broad swath of claims. This is true. See Syndicate Sales, Inc. v.
Hampshire Paper Corp., 192 F.3d 633, 641 (7th Cir. 1999) (“courts interpreting Indiana law
have held that non-criminal illegal acts are sufficient”); Reginald Martin Agency, Inc. v. Conseco
Medical Ins. Co., 388 F. Supp. 2d 919, 931-32 (S.D. Ind. 2005). So, at first blush, Nikish
appears to be on solid footing when it invites the Court to rule that defamation or breach of
contract constitutes an “independent illegal action” for purposes of its tortious interference
claim.
Upon closer examination, however, the Court is not persuaded. Indiana law appears
settled that neither defamation nor breach of contract satisfies the “illegal action” requirement.
See Levee, 729 N.E.2d at 222-23 (“case law does not support a finding that defamation
constitutes illegal conduct.”); Melton, 925 N.E.2d at 436 (“defamation does not satisfy the
illegality requirement”); Smith v. Biomet, Inc., 384 F. Supp. 2d 1241, 1252 (N.D. Ind. 2005)
(“breach of contract alone is not sufficient ‘illegal conduct’ for purposes of a tortious
interference with business relations claim.”); Manufacturer Direct LLC v. DirectBuy, Inc., 2006
WL 2095247, at *9 (N.D. Ind. July 26, 2006) (same). Because Nikish and Bharwani’s claim
lacks this essential element, summary judgment is warranted on the claim of tortious interference
with a business relationship.
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C.
Defamation
Because Nikish and Bharwani’s respective defamation claims fail for the same reason, the
Court will analyze them together.
1.
Indiana law on defamation
Under Indiana law, a defamatory communication is one that “tends to harm a person’s
reputation by lowering the person in the community’s estimation or deterring third persons from
dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007)
(citation and internal quotations omitted). A defamatory statement can be either defamatory per
se or defamatory per quod. Id. “A communication is defamatory per se if it imputes: (1) criminal
conduct; (2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or
occupation; or (4) sexual misconduct.” Id. (citation omitted). Here, the Letter falls within the
ambit of per se defamation because it alleges that Nikish engaged in misconduct in the realm of
property tax software – Nikish’s trade.
To maintain an action for per se or per quod defamation, a plaintiff must satisfy four
elements: (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4)
damages. Id. at 596-97 (citation omitted). The key difference between defamation per se claims
and defamation per quod claims relates to damages; that is, a per se plaintiff “is entitled to
presumed damages as a natural and probable consequence of the per se defamation.” Id. at 597
(citation and internal quotations omitted).2 Finally, whether a communication is defamatory is a
2
Nikish cites dicta from Henry v. Moberly, 51 N.E. 497, 500 (Ind. Ct. App. 1898) for the
proposition that “[w]hen a communication is defamation per se, malice is presumed.” (Dkt. 156
at 9). However, since then, the Indiana Court of Appeals has clarified that “[t]o maintain an
action for defamation per se, the plaintiff still must demonstrate a communication with
defamatory imputation, malice, and publication.” Newman v. Jewish Cmty. Ctr. Assn. of
Indianapolis, 875 N.E.2d 729, 739 (Ind. Ct. App. 2007) (citing Tanoos, 865 N.E.2d at 597).
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question of law for the Court, unless the communication is susceptible to both a defamatory and a
non-defamatory interpretation. Id. at 596.
2.
Actual Malice
Because it is dispositive under the circumstances, the Court’s analysis effectively begins
and ends with the actual malice element of Nikish’s defamation claim. Under Indiana law, “[a]
private individual bringing a defamation action must show ‘actual’ malice in matters of public or
general concern.” Poyser v. Peerless, 775 N.E.2d 1101, 1107 (Ind. Ct. App. 2002) (citations
omitted). Manatron argues that its Letter touched on matters of public concern because it was
sent to government entities to inform them about potential legal issues surrounding property tax
software. Donning a benevolent cap, Manatron highlights that “the public has an interest in the
government potentially purchasing illegal property tax software.” (Dkt. 151 at 17-18). The purity
of Manatron’s motives notwithstanding, its position is backed by some notable authority. See
Fadell v. Minneapolis Star & Tribune Co., Inc., 425 F. Supp. 1075, 1083 (N.D. Ind. 1976) (“The
issue of taxes is, of course, an issue of intense public concern. How the tax assessor operates in
carrying out his public trust is an area requiring the widest constitutional protection of free
debate.”); Nexus Group, Inc. v. Heritage Appraisal Service, 942 N.E.2d 119, 122 (Ind. Ct. App.
2011) (public issues include property tax assessments, the property tax system, and the way each
county spends its funds).
It is worth noting that the fact that Manatron stood to benefit financially from the Letter is
not particularly important. Indiana courts have ruled that statements about “public issues” need
not be animated by altruism. Id. at 123 (“While this evidence . . . tends to show that Heritage may
not have been acting solely out of concern for the well-being of the community by sending the
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letter to the newspaper, we cannot conclude that it establishes that Heritage was not acting in
good faith . . . That he also may have been motivated by self-interest makes him human, but does
not necessarily mean that he acted in bad faith.”). In light of this authority and Nikish’s failure to
forge a contrary argument in its response brief, the Court is persuaded that Manatron’s Letter
involved a matter of “public concern,” thus triggering the actual malice requirement.
Actual malice exists when “the defendant publishes a defamatory statement with
knowledge that it was false or with reckless disregard of whether it was false or not.” Poyser, 775
N.E.2d at 1107 (citation and internal quotations omitted). As the Indiana Supreme Court has
noted, “[t]o demonstrate reckless disregard, there must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his publication or
proof that the false publication was made with a high degree of awareness of their probable
falsity.” Journal Gazette Co., Inc. v. Bandido’s Inc., 712 N.E.2d 446, 456 (Ind. 1999) (citations,
internal quotations, and alterations omitted). Further, it is well-settled that “[r]eckless conduct is
not measured by whether a reasonably prudent man would have published, or would have
investigated before publishing.” Poyser, 775 N.E.2d at 1107 (citations and internal quotations
omitted). A crucial factor in the actual malice determination is the defendant’s state of mind,
which “is a subjective fact that may be shown by indirect or circumstantial evidence.” Id. (citation
omitted). Significantly, actual malice must be shown by clear and convincing evidence and
“[t]he question of whether there is sufficient evidence to support finding actual malice is a
question of law for the court.” Id. (citation omitted). Manatron argues that summary judgment is
warranted because the Letter was not published with actual malice.
The thrust of Nikish’s counter-argument is that Manatron’s failure to undertake an
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investigation prior to disseminating the Letter amounted to a reckless disregard for the truth. In
fact, Nikish’s subheading relating to actual malice states, “Manatron distributed the letter with
reckless disregard of its veracity because it conducted no investigation prior to it being
published.” (Dkt. 156 at 9) (emphasis added). For all intents and purposes, this argument dooms
Nikish’s defamation claim; Indiana law appears well-established that mere negligence or failure
to investigate is not sufficient to establish malice. See Poyser, 775 N.E.2d at 1108 (“the failure to
investigate does not in itself establish malice”); Shine v. Loomis, 836 N.E.2d 952, 959 (Ind. Ct.
App. 2005) (failure to investigate, and by implication, the undertaking of a less than thorough
investigation into the truth of a publication, does not in itself establish malice, as required to
support a claim for defamation); Kitco, Inc. v. Corp. for General Trade, 706 N.E.2d 581, 591
(Ind. Ct. App. 1999) (“negligence or failure to investigate is not sufficient to establish actual
malice.”) (citation omitted). Because Nikish’s evidence is of an insufficient caliber to allow a
rational jury to find actual malice by clear and convincing evidence, See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986), summary judgment is warranted on Nikish and Bharwani’s
defamation claims.3
3
Manatron argues that it is entitled to attorney’s fees under Indiana Anti-SLAPP Act. See
Ind. Code § 34-7-7-5; Nexus, 942 N.E.2d at 122 (statute is designed to combat “[s]trategic
lawsuits against public participation (SLAPPs),” which are “meritless suits aimed at silencing a
plaintiff’s opponents, or at least diverting their resources.”). Significantly, though, in order for
the anti-SLAPP statute to apply, the act at issue must also be “taken in good faith and with a
reasonable basis in law and fact.” Ind. Code § 34-7-7-5. In the context of defamation law, “good
faith” is defined as “a state of mind indicating honesty and lawfulness of purpose; belief in one’s
legal right; and a belief that one’s conduct is not unconscionable.” Nexus, 942 N.E.2d at 122
(citation and internal quotations omitted). Here, even though this case ostensibly bear a strong
resemblance to Nexus, the Court finds that it cannot conclude that Manatron acted in good faith
as a matter of law (good faith is a distinct requirement from actual malice). Specifically, in
Nexus, the defendant conducted research, analyzed data, and attended hearings to buttress its
statements. Manatron took no similar actions. Accordingly, Manatron is not entitled to
attorney’s fees under the Anti-SLAPP Act.
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D.
Breach of contract
To recover for a breach of contract under Indiana law, the plaintiff must prove that: (1) a
contract existed; (2) the defendant breached the contract; and (3) the plaintiff suffered damage
resulting from the breach. Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App. 2007)
(citation omitted). In contract cases, the Court’s primary objective is to effectuate the intent of
the parties at the time the contract was made, which is determined by examining the language the
parties used to express their rights and duties. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc.,
867 N.E.2d 203, 212-13 (Ind. Ct. App. 2007). The Court must read the contract as a whole,
construing language to give meaning to all of the contract’s words, terms, and phrases. Id. at 213.
Likewise, the Court must accept a contract interpretation that harmonizes provisions, not one that
places provisions in conflict. Id.
Here, the parties dispute the meaning of various contract provision, but this is hardly
unusual. The law is well-settled that differing, self-interested interpretations do not create
ambiguity. See Ind. Dept. of Transp. v. Shelly & Sands, Inc., 756 N.E.2d 1063, 1069 (Ind. Ct.
App. 2001). Instead, a contract is ambiguous only when it is “susceptible to more than one
interpretation and reasonably intelligent persons would honestly differ as to its meaning.” Id. at
1069-70. Absent ambiguity, the Court must give the contract terms a plain and ordinary
meaning. Id. at 1070.
Nikish and Bharwani allege that by disseminating the Letter, Manatron breached Section
6.2 of the Settlement Agreement, which provides:
Freedom to Contract. Nikish and Mr. Bharwani, directly or through business
entities in which they have an interest, are free to provide any business and
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consulting services to, and create any deliverables for, any person or entity.
Without limiting the foregoing, the noncompetition provisions in the Contract,
and in any other written agreement between the parties, are null and void. No
contractual limitations in any contract between Manatron and a third party shall
in any way limit the ability of Nikish and Mr. Bharwani to do business with
such parties.
(Emphasis added). Specifically, Nikish and Bharwani argue that Manatron’s Letter “was a
blatant attempt to violate Nikish and Bharwani’s freedom to contract with Indiana’s counties . . .
by asserting false accusations and defamatory statements that would in effect deem Nikish and
Bharwani unfit to do business with in Indiana.” (Dkt. 156 at 25). Manatron counters that its
Letter never mentioned the Settlement Agreement and, in any event, it was simply protecting its
intellectual property rights as contemplated by Section 6.1 the Settlement Agreement, which
provides:
Trade Secret/Intellectual Property Obligations and Prohibition Against Copying
of Software. As of the Effective Date, the sole post-Agreement and
post-Contract restrictions upon Nikish and/or Mr. Bharwani are the obligations
(a) not to use (except for the benefit of Manatron pursuant to this Agreement) or
disclose to third parties the trade secrets or proprietary information of
Manatron, including the deliverables under this Agreement, data models, notes,
memoranda, plans, records, electronic mailings or reports, whether in
digital/electronic or written form (b) not to reproduce copies of the software
delivered by Nikish to Manatron relating to the Project/Nikish will turn over to
Manatron copies of the current version of the software written for Manatron.
Upon conclusion of the Go Live Services, Nikish shall destroy any copies in its
possession of the software or other workproduct created by Nikish and in which
Manatron owns the intellectual property rights, provided that Nikish shall be
entitled to retain archive copies for evidentiary purposes.
(Emphasis added).
In the Court’s view, this is a difficult issue, as there is arguably some tension within these
provisions. On one hand, if Section 6.2 – the “freedom to contract” provision – does not apply
under these circumstances, then it is unclear if it has any real teeth. On the other hand, by
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including Section 6.1, Manatron made clear that Nikish was not entitled to reproduce Manatron’s
intellectual property. On this point, Manatron argues that Section 6.2 cannot be read as an antidisparagement provision that precluded it from writing to its customers.
The Court believes that, at this time, Nikish has the better argument. Through the Letter,
Manatron arguably attempted to thwart Nikish’s ability to perform under the “freedom to
contract” provision. The Court’s decision is informed by general principles embedded in the
“doctrine of prevention.” Under this doctrine, “if one party to a contract hinders, prevents, or
makes impossible performance by the other party, the latter’s failure to perform will be excused.”
13 WILLISTON ON CONTRACTS § 39:3 (4th ed.). Along those lines, “[w]hether interference by one
party to a contract amounts to prevention so as to excuse performance by the other party and
constitute a breach by the interfering party is a question of fact to be decided by the jury under all
of the proved facts and circumstances.” (emphasis added). As the Restatement (First) of
Contracts has recognized:
Prevention or hindrance by a party to a contract of any occurrence or performance
requisite under the contract for the creation or continuance of a right in favor of the
other party, or the discharge of a duty by him, is a breach of contract, unless
(a) the prevention or hindrance is caused or justified by the conduct of the other party,
or
(b) the terms of the contract are such that the risk of such prevention or hindrance as
occurs has been assumed by the other party.
RESTATEMENT (FIRST) OF CONTRACTS § 315 (1932). While the prevention doctrine is not directly
applicable, since excusing performance is not at issue, the Court believes that its general
principles serve as useful guides under the unique circumstances at hand. In other words,
Manatron arguably hindered Nikish’s freedom to contract by disseminating the Letter, potentially
amounting to a breach of Section 6.2. Thus, whether Manatron’s conduct amounted to a breach
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and, in a similar vein, whether Manatron’s conduct was justified under the circumstances are
questions for the jury. Stated differently, given the language of the “freedom to contract”
provision, it is unclear whether Manatron’s conduct amounted to a breach of the Settlement
Agreement: “When . . . the language of a contract is ambiguous, its meaning must be determined
by examining extrinsic evidence and its construction is a matter for the fact-finder.” Trustcorp,
867 N.E.2d at 212; see also Mechanics Laundry & Supply Inc. of Ind. Shareholders Liquidating
Trust v. American Cas. Co. of Reading, PA, 2007 WL 1021452, at *2 (S.D. Ind. March 30, 2007)
(“Where a contract is ambiguous as applied to the circumstances shown by the evidence . . .
summary judgment may be difficult to support.”); Simon Property Group L.P. v. Michigan
Sporting Goods Distributors, Inc., 837 N.E.2d 1058, 1071 (Ind. Ct. App. 2005) (latent ambiguity
arises “upon attempting to implement the contract” and must be resolved by the finder of fact).
Accordingly, summary judgment on Nikish’s breach of contract claim is denied.
IV. CONCLUSION
For the reasons set forth above, Manatron’s Motion for Summary Judgment (Dkt. 150) is
GRANTED with respect to Nikish and Bharwani’s tortious interference with contract claim,
tortious interference with a business relationship claim, and defamation claim. The Motion is
DENIED with respect to the breach of contract claim.
SO ORDERED: 07/08/2011
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
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Copies to:
G. Christopher Bernard
BODMAN LLP
cbernard@bodmanllp.com,mruvo@bodmanllp.com
James Dimos
FROST BROWN TODD LLC
jdimos@fbtlaw.com,award@fbtlaw.com
Richelle Marie Harris
FROST BROWN TODD LLC
rharris@fbtlaw.com,jtheal@fbtlaw.com
Susan M. Kornfield
BODMAN LLP
skornfield@bodmanllp.com,mpoupard@bodmanllp.com
J. Lee McNeely
MCNEELY STEPHENSON THOPY & HARROLD
jlmcneely@msth.com,emtindall@msth.com
Brady J. Rife
MCNEELY STEPHENSON THOPY & HARROLD
bjrife@msth.com,lsmanship@msth.com
Joel E. Tragesser
FROST BROWN TODD LLC
jtragesser@fbtlaw.com,saddington@fbtlaw.com
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