Grady B. Jones and Susan R. Lockwood v. Oakland City University Founded by General Baptists, Inc. and Ray G. Barber ( 2019 )


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  •                                                                                FILED
    Apr 18 2019, 9:00 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEES
    Joseph G. Striewe                                           Patrick A. Shoulders
    Indianapolis, Indiana                                       Wm. Michael Schiff
    L. Katherine Boren
    Ziemer, Stayman, Weitzel &
    Shoulders, LLP
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Grady B. Jones and Susan R.                                 April 18, 2019
    Lockwood,                                                   Court of Appeals Case No.
    Appellants-Plaintiffs,                                      18A-PL-2994
    Appeal from the Gibson Superior
    v.                                                  Court
    The Honorable Robert R.
    Oakland City University                                     Aylsworth, Special Judge
    Founded by General Baptists,                                Trial Court Cause No.
    Inc. and Ray G. Barber,                                     26D01-1712-PL-1876
    Appellees-Defendants.
    Najam, Judge.
    Statement of the Case
    [1]   Grady B. Jones and Susan R. Lockwood appeal the trial court’s judgment on
    the pleadings in favor of Oakland City University Founded by General Baptists,
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                           Page 1 of 25
    Inc. (“OCU”) and Ray G. Barber. Jones and Lockwood raise three issues for
    our review, which we restate as the following three issues:
    1.       Whether the trial court erred when it entered judgment on
    the pleadings on two counts of fraud in the inducement,
    which judgment the court based on integration clauses in
    the parties’ contracts.
    2.       Whether the trial court erred when it entered judgment on
    the pleadings on a count of retaliatory discharge, which
    count was premised on OCU’s termination of Jones’ and
    Lockwood’s employment after they had orally reported
    on the misuse of public funds by OCU officers.
    3.       Whether the trial court erred when it entered judgment on
    the pleadings on various theories of at-will employment.
    [2]   Although we disagree with the trial court’s reliance on the integration clauses
    on the first issue, we nonetheless reach the same conclusion on that issue
    because the pleadings show that the alleged misrepresentations relied on by
    Jones and Lockwood were statements of current intentions made by OCU
    officers during their contract negotiations. As a matter of Indiana law, such
    statements do not establish a basis for fraud. Accordingly, we affirm the trial
    court’s judgment on the first issue. We also affirm the trial court’s judgment on
    the other issues in this appeal.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 2 of 25
    Facts and Procedural History 1
    [3]   On December 8, 2017, Jones and Lockwood filed their complaint against OCU
    and Barber, which Jones and Lockwood later supplemented and amended. On
    August 28, 2018, Jones and Lockwood filed their supplemented second
    amended complaint, which provided in relevant part as follows:
    Count I Fraud in the Inducement . . . : Jones
    1. On or about March 2, 2017, Jones was contacted with regard
    to potential future employment by [Barber,] President of OCU.
    2. Between March 13, 2017[,] and June 5, 2017, Jones engaged
    in discussions with regard to employment by OCU as its Vice
    President for Advancement (“VPA”) addressing the terms and
    conditions of employment with representatives of OCU,
    including, but not limited to:
    A. [Barber], its President;
    B. C. William Blackburn . . . , its Chairman of the OCU
    Board of Trustees;
    C. John Dunn . . . , its Special Advisor to the OCU Board
    of Trustees.
    1
    We agree with OCU and Barber that, among other deficiencies, Jones and Lockwood “have failed to
    include numerous relevant materials in their Appellants’ Appendix,” contrary to Indiana Appellate Rule
    50(A)(2). Appellees’ Br. at 5 n.1. We thank OCU and Barber for their submission of an Appellees’
    Appendix to supplement the Appellants’ Appendix.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                             Page 3 of 25
    3. On or about May 18, 2017, during discussions referenced
    herein, Barber, Blackburn, and Dunn orally represented to Jones
    that his employment would be contingent on his agreement to
    serve as VPA for a period of five years, during which time his
    duties would include preparing his prospective successor to
    accede to VPA upon his retirement.
    4. Prior to accepting the VPA position at OCU, Jones orally
    advised Barber that he had been selected to fill the position of
    Associate Vice Chancellor for Advancement at Troy University,
    in Troy, Alabama.
    5. On or about May 31, 2017, Jones and Barber executed a
    Provisionary Administrative Member Agreement (“Employment
    Agreement”), whereby the parties agreed to a salary and specific
    duration of employment commencing June 5, 2017[,] and ending
    May 31, 2018.
    ***
    9. The terms of the Employment Agreement do not contemplate
    employment of Jones for five years.
    10. The terms of the Employment Agreement are inconsistent
    with the representations made to Jones by Barber, Blackburn,
    and Dunn during the hiring process.
    ***
    13. The Employment Agreement states[:] “Either party may
    terminate this Agreement for any reason without cause upon
    thirty (30) days prior written notice to the other party.”
    [(“Termination Clause.”)]
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 4 of 25
    14. The contents . . . of the Employment Agreement describe an
    at-will relationship.
    15. The [Termination Clause] . . . is inconsistent with the oral
    representations of Barber, Blackburn, and Dunn during the hiring
    process of Jones with regard to the specific duration of
    employment.
    ***
    24. The Employment Agreement states[:] “Entire Agreement.
    This Agreement constitutes the entire agreement between the
    parties hereto with respect to the subject matter hereof, and it
    supersedes all prior oral or written agreements[,] commitments or
    understandings with respect to the matters provided for
    herein . . . .” (“Integration Clause”).
    ***
    32. Barber intended that Jones’ nature of employment be at-will.
    33. On October 2, 2017, Barber hand-delivered written 30-day
    notice to Jones that Jones’ employment was terminated “without
    cause” (“Termination Notice”).
    34. Jones is an alumnus of OCU.
    35. Jones was 64 years of age at the time of the transaction
    described herein.
    36. Barber is a clergyman in the General Baptist Church.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 5 of 25
    37. Jones was acquainted with Barber in his capacity as a
    clergyman of the General Baptist Church in excess of 40 years.
    38. Jones reposed a confidence in Barber that Barber’s actions
    would be consistent with his oral representations and assurances
    regarding the specific duration of Jones’ employment made
    during [the] hiring process.
    ***
    41. Jones was induced to execute the Employment Agreement
    by the oral representations and assurances of Barber,
    Blackburn[,] and Dunn to accept employment of specific
    duration for a period of not less than five years as VPA.
    42. Jones relied on the oral representations [and] assurances of
    Barber, Blackburn[,] and Dunn and agreed to accept employment
    consistent with the terms and conditions of employment
    represented, which induced him to believe he would be employed
    by OCU in the capacity of VPA for a period of five years.
    43. Jones had a right to rely on the oral representations of
    Barber, Blackburn, and Dunn made prior to the execution of the
    Employment Agreement[] with regard to the term of his
    employment . . . .
    44. Based on the oral representation . . . Jones advised
    representatives of Troy University that he was accepting OCU’s
    offer of employment.
    45. The actions of Barber described herein constitute fraud in the
    inducement.
    ***
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 6 of 25
    Count II Fraud in the Inducement . . . : Lockwood
    ***
    51. On or about April 2017, Lockwood was contacted with
    regard to potential future employment by OCU by Robert
    Yeager, who was then the Vice President For Administration and
    Finance (“VPAF”) of OCU.
    52. Between April[] 2017 and July 7, 2017, Lockwood engaged
    in discussions with regard to employment by OCU as its [VPAF]
    addressing the terms and conditions of employment with
    representatives of OCU, including, but not limited to:
    A. [Barber];
    B. Daniel Dunivan . . . , its Provost;
    C. [Blackburn].
    53. Prior to accepting the VPAF position, Lockwood orally
    advised Barber that she held a position of assured permanency of
    employment with the Indiana Department of Correction[.]
    ***
    55. Prior to accepting the VPAF position, Barber orally assured
    Lockwood that her employment would be permanent.
    56. On or about July 10, 2017, Lockwood and Barber executed a
    Provisionary Administrative Member Agreement (“Employment
    Agreement[ ]2”), whereby the parties agreed to a salary and a
    term of employment ending on May 31, 2018.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 7 of 25
    57. The terms of the Employment Agreement[ ]2 contemplate
    employment of Lockwood for a specific duration.
    58. The oral representations and assurances of Blackburn were
    not reduced to writing regarding . . . [her employment] for a
    specified period.
    59. Lockwood intended to accept OCU’s offer of permanent
    employment.
    ***
    63. The Employment Agreement[ ]2 states [a Termination
    Clause identical to Jones’ Termination Clause].
    64. The contents of [the Termination Clause] describe an at-will
    relationship.
    65. The contents of [the Termination Clause] are inconsistent
    with the oral representations of Barber, Blackburn, and Dunivan
    during the hiring process of Lockwood . . . .
    ***
    72. The Employment Agreement[ ]2 states [an Integration
    Clause identical to Jones’ Integration Clause].
    73. The Integration Clause disavows OCU’s obligation to
    comply with oral representations made by Barber, Blackburn,
    and Dunivan during the hiring of Lockwood.
    ***
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 8 of 25
    76. Barber was aware of the terms contained in [the Termination
    Clause and the Integration Clause] prior to presenting [the
    Employment Agreement] to Lockwood for execution.
    ***
    80. Barber held a position of superior knowledge over Lockwood
    with regard to the content of the Employment Agreement.
    81. Barber intended that Lockwood’s nature of employment
    would be at-will.
    82. On October 2, 2017, Barber hand-delivered written 30-day
    notice to Lockwood that Lockwood’s employment was
    terminated “without cause” (“Termination Notice”).
    83. Lockwood is an alumna of OCU.
    84. Barber is a clergyman in the General Baptist Church.
    85. Lockwood reposed a confidence in Barber that Barber’s
    actions would be consistent with his oral representations and
    assurances regarding the specific duration of Lockwood’s
    employment made during [the] hiring process.
    ***
    87. Lockwood was induced by the oral representations and
    assurances of Barber, Blackburn[,] and Dunivan to accept
    employment consistent with the terms and conditions described
    herein and advised Barber that she was ready and willing to serve
    in the capacity of VPAF until retirement.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 9 of 25
    88. Lockwood relied on the oral representations [and]
    assurances of Barber, Blackburn[,] and Dunivan and agreed to
    accept employment under those terms and conditions described
    herein, which induced her to believe she would be employed by
    OCU in the capacity of VPAF indefinitely.
    89. Lockwood had the right to rely on the oral representations of
    Barber, Blackburn, and Dunivan made prior to the execution of
    the Employment Agreement[] with regard to the term of her
    employment by OCU.
    90. Lockwood was induced by the oral representations of
    Barber, Blackburn, and Dunivan to accept permanent
    employment by OCU, to her detriment.
    91. Lockwood’s reliance on the oral representations and
    assurances of Barber, Blackburn, and Dunivan induced her to
    forego a permanent employment with the Indiana Department of
    Correction[.]
    92. Lockwood’s reliance on the oral representations and
    assurances of Barber, Blackburn, and Dunivan induced her to
    believe she would be employed indefinitely by OCU.
    93. The actions of Barber described herein constitute fraud in the
    inducement.
    ***
    Count III Retaliatory Discharge
    ***
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 10 of 25
    113. On or about August 27, 2017, in their respective capacities
    as VPA and VPAF, and at the direction of Blackburn, Jones and
    Lockwood advised members of the OCU Board of Trustees of
    observations, findings[,] and evidence of [the] following matters
    which fall within their duties and responsibilities as officers of
    OCU and custodians of the public fisc, in violation of I.C. § 22-5-
    3-3.
    114. Jones and Lockwood, during the course of their
    employment[,] found evidence of misappropriation of
    endowment funds.
    115. Jones and Lockwood, during the course of their
    employment[,] found evidence that CFO[ Beth Barber, wife of
    OCU President Barber,] failed to produce, or was incapable of
    producing, monthly financial reports.
    116. Lockwood was denied complete access to OCU financial
    records but was required to take actions for which she could be
    personally liable.
    117. Jones and Lockwood, during the course of their
    employment[,] found evidence that entity “Blue Oak, LLC” was
    created by Barber in collaboration with former VPAF [Yeager]
    for the purpose of controlling funds provided OCU by [the]
    United States Department of Agriculture and [the] Indiana
    Regional Cities Initiative associated with a capital project,
    commonly known as University Boulevard Commons.
    118. Jones and Lockwood, during the course of their
    employment[,] . . . found evidence that the entity “Blue Oak,
    LLC” was created without the knowledge of the entire Board of
    Trustees.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 11 of 25
    ***
    121. Jones and Lockwood, during the course of their
    employment[,] . . . found evidence that Yeager was to be
    compensated from funds provided to OCU associated with a
    capital project, which constitutes misuse of public resources by
    the terms of the award.
    122. Jones and Lockwood, during the course of their
    employment[,] . . . found evidence that funds in excess of $25,000
    were designated in the proposed budget provided to the
    Southwest Indiana Regional Development Authority for
    payment to [a local law firm] for expenses associated with Blue
    Oak, LLC.
    123. Jones and Lockwood were discharged in retaliation for
    their disclosure of the foregoing matters to members of the OCU
    Board of Trustees.
    ***
    130. The wrongful/retaliatory discharge of Jones and Lockwood
    by Barber violates Indiana’s public policy and I.C. § 22-5-3-3. . . .
    Appellants’ App. Vol. 2 at 27-39 (emphases and citations removed).
    [4]   In addition to those three counts, Jones and Lockwood alleged, as relevant
    here, two additional counts that were premised on a theory of at-will
    employment with OCU (“the at-will employment counts”). 2 The at-will
    2
    In their complaint, Jones and Lockwood additionally alleged that OCU and Barber had engaged in undue
    influence and that Jones’ and Lockwood’s purported at-will employment had been unlawfully terminated
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                        Page 12 of 25
    employment counts specifically alleged that OCU and Barber had unlawfully
    terminated Jones’ and Lockwood’s at-will employment under a theory of
    “independent consideration,” which was based on Jones’ lost employment
    opportunity with Troy University and Lockwood’s lost employment
    opportunity with the Department of Correction. The at-will employment
    counts also alleged unlawful termination of Jones’ and Lockwood’s
    employment under a theory of “promissory estoppel,” which was based on their
    reliance on the oral representations of OCU’s officers during their respective
    hiring processes. Id. at 39-41 (emphases removed). Jones and Lockwood
    attached their Employment Agreements and Termination Notices to their
    complaint.
    [5]   OCU and Barber jointly moved for judgment on the pleadings under Indiana
    Trial Rule 12(C). The court granted the motion and entered final judgment for
    OCU and Barber in light of the “clear and unambiguous” “language of the
    contract[s],” especially “the integration clause[s].” Id. at 21-22. This appeal
    ensued.
    under a theory of constructive fraud. Jones and Lockwood also referred to the Employment Agreements as
    “unconscionable.” Appellants’ App. Vol. 2 at 30, 34. However, Jones and Lockwood do not argue on
    appeal that the trial court erred when it entered judgment on the pleadings with respect to those additional
    counts, and, thus, we do not consider the trial court’s judgment with respect to those additional counts on
    appeal. See Ind. Appellate Rule 46(A)(8)(a).
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                              Page 13 of 25
    Discussion and Decision
    Standard of Review
    [6]   Jones and Lockwood appeal the trial court’s entry of judgment on the
    pleadings. As our Supreme Court has explained:
    A motion for judgment on the pleadings under Trial Rule 12(C)
    tests the sufficiency of a claim or defense presented in the
    pleadings and should be granted only where it is clear from the
    face of the complaint that under no circumstances could relief be
    granted. Because we base our ruling solely on the pleadings, we
    accept as true the material facts alleged in the complaint. When,
    as here, a 12(C) motion essentially argues the complaint fails to
    state a claim upon which relief can be granted, we treat it as a
    12(B)(6) motion. Like a trial court’s 12(B)(6) ruling, we review a
    12(C) ruling de novo.
    KS&E Sports v. Runnels, 
    72 N.E.3d 892
    , 898 (Ind. 2017) (quotations marks and
    citations omitted). For purposes of a Rule 12(C) motion, the pleadings, as
    relevant here, consist of the complaint and any written instrument attached to
    the complaint. Celadon Trucking Servs., Inc. v. Wilmoth, 
    70 N.E.3d 833
    , 840 (Ind.
    Ct. App. 2017), trans. denied.
    [7]   As Jones and Lockwood’s complaint alleges multiple and alternative theories of
    recovery, we address the counts as follows: the two counts of fraud in the
    inducement; the allegation of retaliatory discharge; and the two at-will
    employment counts.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 14 of 25
    Issue One: Fraud in the Inducement Counts
    [8]    We first consider Jones and Lockwood’s allegations that OCU and Barber
    fraudulently induced them into executing the Employment Agreements. The
    trial court entered judgment on the pleadings against Jones and Lockwood on
    these two counts based on the Integration Clauses of the Employment
    Agreements, in which Jones and Lockwood expressly disclaimed “all prior oral
    or written agreements, commitments or understandings” between the parties.
    Appellants’ App. Vol. 2 at 73, 81-82.
    [9]    To plead a claim of fraud in the inducement, Jones and Lockwood needed to
    state (1) a material misrepresentation of past or existing facts; (2) made with
    knowledge or reckless ignorance of its falsity; (3) which caused the claimant to
    rely upon the misrepresentation to the claimant’s detriment. Siegal v. Williams,
    
    818 N.E.2d 510
    , 515 (Ind. Ct. App. 2004). Such claims of actual fraud “may
    not be predicated upon representations of future conduct.” 
    Id.
     Neither may a
    claim of actual fraud be based on “broken promises, unfulfilled predictions, or
    statements of intent which are not executed.” Maynard v. 84 Lumber Co., 
    657 N.E.2d 406
    , 409 (Ind. Ct. App. 1995), trans. denied.
    [10]   On appeal, OCU and Barber first assert that the pleadings fail to show that
    Jones and Lockwood’s fraud in the inducement counts were based on past or
    existing facts. We initially note that OCU and Barber did not argue that theory
    in support of their motion for judgment on the pleadings to the trial court. See
    Appellees’ App. Vol. 2 at 25-26, 45, 61, 98, 113-14. However, we nonetheless
    conclude that the issue is properly before us in that our standard of review on
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 15 of 25
    Rule 12(C) issues is de novo and requires us to read the pleadings for ourselves to
    determine if they state any circumstances under which relief can be granted.
    E.g., KS&E Sports, 72 N.E.3d at 898; see also Celadon, 70 N.E.3d at 840-41. In
    other words, we may affirm the trial court’s judgment on a Rule 12(C) motion
    on any theory supported by the record, just as we can on appeal from a Rule
    12(B)(6) judgment. See Citizens Action Coalition of Ind. v. Koch, 
    51 N.E.3d 236
    ,
    241 (Ind. 2016); see also Celadon, 70 N.E.3d at 841 (interpreting a new argument
    on appeal in support of the trial court’s Rule 12(C) judgment as “merely [an]
    expression[] upon [the parties’] earlier arguments” to the trial court).
    Accordingly, we will consider OCU and Barber’s contention that the pleadings
    fail to show a legally sufficient misrepresentation.
    [11]   We agree with OCU and Barber that, as a matter of Indiana law, Jones and
    Lockwood have failed to plead a misrepresentation of a past or existing fact.
    According to the complaint, the alleged misrepresentation underlying Jones’
    fraud in the inducement count occurred “during discussions” of employment
    terms when OCU’s officers “orally represented to Jones that his employment
    would be contingent on his agreement to serve as VPA for a period of five
    years . . . .” Appellants’ App. at 27-28. The complaint similarly alleges that the
    misrepresentation underlying Lockwood’s fraud in the inducement count
    occurred “during the hiring process” when the parties were “in discussion with
    regard to employment by OCU,” and Barber “orally assured Lockwood that
    her employment” with OCU “would be permanent.” Id. at 32-33.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 16 of 25
    [12]   “Indiana law has not recognized a claim for fraud based on misrepresentation
    of the speaker’s current intentions.” Sees v. Bank One, Ind., N.A., 
    839 N.E.2d 154
    , 163 (Boehm, J., concurring in part and dissenting in part) (quoting Sachs v.
    Blewett, 
    206 Ind. 151
    , 155-56, 
    185 N.E. 856
    , 858 (1933); Kopis v. Savage, 
    498 N.E.2d 1266
    , 1272 (Ind. Ct. App. 1986)); see also 
    id.
     at 161 n.6 (majority
    opinion) (agreeing with Justice Boehm that existing Indiana precedent does not
    permit an action for fraud based on a statement of current intention but noting
    that our precedent is in conflict with the Restatement (Second) of Contracts §
    159 cmt. d (1981)).
    [13]   For example, in Sachs, a seller of real property alleged that putative buyers of
    that property had orally agreed to purchase the property for a specific price at
    an auction but had “intended to repudiate the agreement with the object of
    procuring the real estate at a lower price” after the auction. 
    185 N.E. at 858
    .
    Our Supreme Court stated that the buyers’ “promises and representations were
    only false in the sense that the [buyers] intended to and did refuse to comply
    with them . . . .” 
    Id.
     The court then held that such false intentions did not
    support a claim for fraud, stating that “[a] fraudulent intent alone is not
    actionable. . . . This court has repeatedly said that actionable fraud cannot be
    predicated upon a promise to do a thing in the future, although there may be no
    intention of fulfilling the promise.” 
    Id.
     The court further noted that “the law
    did not require” the parties “to carry out their agreement, and fraud cannot be
    predicated upon a failure to do that which there is no legal obligation to do.”
    Id. at 859.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 17 of 25
    [14]   Similarly, in Kopis, the seller of a business “promised” a prospective buyer that
    he would “help arrange financing and to take the [business] off the market for
    90 days.” 
    498 N.E.2d at 1272
    . The seller failed to do so, and the prospective
    buyer was unable to finalize his purchase of the property because of the seller’s
    failures. After a bench trial on the buyer’s complaint, the trial court ultimately
    concluded that the buyer did not present sufficient evidence to show fraud on
    the part of the seller. We affirmed on appeal and held that the evidence showed
    that the seller’s statements “were not misrepresentations of existing fact[] but
    [were] promises of future conduct for which an action of fraud will not lie.” 
    Id.
    [15]   Jones and Lockwood’s fraud in the inducement counts are premised on
    statements of current intentions by OCU’s officers. Specifically, the alleged
    misrepresentations were with respect to the durations of employment OCU’s
    officers had offered to Jones and Lockwood during their respective hiring
    processes and prior to the execution of their Employment Agreements.
    Assuming that those representations “were false in the sense that [OCU’s
    officers] intended to and did refuse to comply with them,” as in Sachs there is
    no factual basis for a fraud claim as “[a] fraudulent intent alone is not
    actionable.” 
    185 N.E. at 858
    . Rather, as in Kopis, the representations of OCU’s
    officers to Jones and Lockwood during their negotiations for employment
    “were not misrepresentations of existing fact[] but were promises of future
    conduct,” that is, they were promises as to what the Employment Agreements
    would say when those agreements were eventually reduced to writing. 
    498 N.E.2d at 1272
    . That the Employment Agreements ended up saying something
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019          Page 18 of 25
    different might go to the parties’ meeting of the minds in the formation of a
    valid contract, but it does not go to a tort claim for fraud. See Sachs, 
    185 N.E. at 858
    .
    [16]   Indeed, the actual basis for the trial court’s entry of judgment on the pleadings
    on the two fraud in the inducement counts was not that the pleadings failed to
    state a legally sufficient misrepresentation but that the parties’ Integration
    Clauses precluded fraud. 3 That rationale was incorrect. As we have explained:
    The parol evidence rule provides that “[w]hen two parties have
    made a contract and have expressed it in a writing to which they
    have both assented as the complete and accurate integration of
    that contract, evidence . . . of antecedent understandings and
    negotiations will not be admitted for the purpose of varying or
    contradicting the writing.” Dicen v. New Sesco, Inc., 
    839 N.E.2d 684
    , 688 (Ind. 2005) (quoting 6 Arthur Linton Corbin, Corbin on
    Contracts § 573 (2002 reprint)) (emphasis removed). This rule
    “effectuates a presumption that a subsequent written contract is
    of a higher nature than earlier statements, negotiations, or oral
    agreements by deeming those earlier expressions to be merged in
    to or superseded by the written document.” 11 Richard A. Lord,
    Williston on Contracts § 33:1 (4th ed. 1999) (footnote omitted).
    The first step when applying the parol evidence rule is
    determining whether the parties’ written contract represents a
    complete or partial integration of their agreement. See
    Restatement (Second) of Contracts §§ 209, 210 (1981). If the
    contract is completely integrated, constituting a final and
    3
    Jones and Lockwood’s assertion on appeal that the Integration Clauses “do[] not extend to promises made
    thereafter” by OCU and Barber is not supported by cogent reasoning, and we do not consider it. Appellants’
    Br. at 24 (emphasis removed).
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                           Page 19 of 25
    complete expression of all the parties’ agreements, then evidence
    of prior or contemporaneous written or oral statements and
    negotiations cannot operate to either add to or contradict the
    written contract. Franklin v. White, 
    493 N.E.2d 161
    , 167 (Ind.
    1986). The preliminary question of integration, either complete or
    partial, requires the court to hear all relevant evidence, parol or written.
    
    Id.
     “Whether a writing has been adopted as an integrated agreement is a
    question of fact to be determined in accordance with all relevant
    evidence.” Restatement (Second) of Contracts §§ 209 cmt. c.
    Nevertheless, what is ordinarily a question of fact may become a
    question of law “where the facts are undisputed and only a single
    inference can be drawn from those facts.” Jones v. Ind. Bell Tel.
    Co., 
    864 N.E.2d 1125
    , 1127 (Ind. Ct. App. 2007) (breach of
    duty); see also Hamilton v. Ashton, 
    846 N.E.2d 309
    , 316 (Ind. Ct.
    App. 2006) (proximate cause), clarified on reh’g, 
    850 N.E.2d 466
    ,
    trans. denied.
    Hinkel v. Sataria Distrib. & Packaging, Inc., 
    920 N.E.2d 766
    , 768-69 (Ind. Ct. App.
    2010) (emphasis added; alteration and omissions original to Hinkel).
    [17]   In other words, whether a written contract represents the parties’ complete and
    integrated agreement is a question of fact that may turn on parol evidence
    despite what the written contract itself may say. Franklin, 493 N.E.2d at 166-
    67. Moreover, “[p]arol evidence is admissible when fraud is at issue” and the
    purported written agreement is alleged to be void. Peoples Trust & Sav. Bank v.
    Humphrey, 
    451 N.E.2d 1104
    , 1112 (Ind. Ct. App. 1983). As the Indiana
    Supreme Court has long held, “[f]raud arising out of the negotiations leading up
    to the execution of a written contract is not merged therein . . . .” Moore v.
    Harmon, 
    142 Ind. 555
    , 
    41 N.E. 599
    , 600 (1895); see also Franklin, 493 N.E.2d at
    166. Thus, the Integration Clauses did not preclude Jones and Lockwood from
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019               Page 20 of 25
    introducing parol evidence to a fact finder on their claims that they were
    fraudulently induced to execute the Employment Agreements and, as such, that
    those agreements do not in fact represent the parties’ intended agreements.
    [18]   In the trial court and on appeal, OCU and Barber substantially relied on this
    Court’s opinion in Circle Center Development Co. v. Y/G Indiana, L.P. for the
    proposition that, to plead a claim of fraud in the inducement to a contract that
    contains an integration clause, the plaintiff must specifically assert that he was
    “fraudulently induced . . . to execute the disclaimer” itself. 
    762 N.E.2d 176
    ,
    180-81 (Ind. Ct. App. 2002), trans. denied. However, we have since clarified
    that, while such arguments “accurately quote[] our decision” in Circle Center,
    “the proposition upon which [our statement in Circle Center relied] has a broader
    application,” namely, that a party “could overcome the effect of an integration
    clause if it could show it had a right to rely on the alleged misrepresentations
    and did in fact rely on them in executing the release and/or the integration clause.”
    Wind Wire, LLC v. Finney, 
    977 N.E.2d 401
    , 405 (Ind. Ct. App. 2012) (quoting
    Tru-Cal, Inc. v. Conrad Kacsik Instrument Sys., Inc., 
    905 N.E.2d 40
    , 45 (Ind. Ct.
    App. 2009), trans. denied) (emphasis original to Wind Wire); see also Judson
    Atkinson Candies, Inc. v. Kenray Assocs., Inc., 
    719 F.3d 635
    , 639-44 (7th Cir. 2013)
    (concluding that, insofar as Circle Center might be read to “announce a new
    categorical rule” of Indiana law, such rule “is inconsistent with the Indiana
    Supreme Court’s pronouncements” and other decisions of our Court). We
    agree with those authorities and decline to follow Circle Center insofar as OCU
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 21 of 25
    and Barber narrowly read it in a manner inconsistent with prevailing Indiana
    law.
    [19]   Nonetheless, regardless of the Integration Clauses, the pleadings demonstrate
    that Jones and Lockwood have not stated a claim for fraud because they have
    not identified a legally sufficient misrepresentation by OCU and its officers.
    Accordingly, on that basis we affirm the trial court’s entry of judgment on the
    pleadings for OCU and Barber on the two fraud in the inducement counts.
    Issue Two: Retaliatory Discharge
    [20]   We next consider Jones and Lockwood’s claim that they were discharged in
    retaliation for reporting the misuse of public funds by OCU or its officers.
    According to their complaint, Jones and Lockwood’s claim of retaliatory
    discharge is based on Indiana Code Section 22-5-3-3 (2018), which provides in
    relevant part as follows:
    (a) An employee of a private employer that is under public
    contract may report in writing the existence of:
    ***
    (4) the misuse of public resources;
    concerning the execution of a public contract first to the private
    employer, unless the private employer is the person whom the
    employee believes is committing the . . . misuse of public
    resources. In that case, the employee may report the . . . misuse
    of public resources in writing to either the private employer or to
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 22 of 25
    any official or agency entitled to receive a report from the state
    ethics commission . . . .
    (b) For having made a report under subsection (a), an employee may
    not:
    (1) be dismissed from employment . . . .
    (Emphases added.)
    [21]   Assuming for the sake of argument that Indiana Code Section 22-5-3-3 creates a
    private cause of action, it is clear that, before the statute can apply, the
    employee’s report must have been made “in writing.” 
    Id.
     There is no dispute
    that Jones and Lockwood did not make their report of misuse in writing.
    [22]   Instead, in the trial court Jones and Lockwood asserted that the statute’s use of
    “may” means that they were not required to make a report in writing in order to
    be protected under the statute. We cannot agree. The statute’s use of “may”
    means that an employee “may” report misuse but is not legally compelled to do
    so. However, if the employee chooses to make a report, he or she must do so
    “in writing” to be protected under the statute. As Jones and Lockwood did not
    make their report in writing, the trial court properly entered judgment on the
    pleadings for OCU and Barber on the retaliatory discharge count.
    Issue Three: At-Will Employment Counts
    [23]   Finally, we address Jones and Lockwood’s at-will employment counts. In their
    complaint, Jones and Lockwood assert that, because the Termination Clauses
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019           Page 23 of 25
    provide that they could be terminated for any reason on thirty days written
    notice, they were, despite appearances, at-will employees. They further allege
    that, as at-will employees, they were protected against dismissal without cause
    based on a theory of promissory estoppel and/or a theory of “independent
    consideration,” namely, their forfeiture of job opportunities elsewhere to accept
    their employments with OCU. See Appellants’ App. Vol. 2 at 39.
    [24]   Jones and Lockwood were clearly not at-will employees. 4 As the Indiana
    Supreme Court has made clear:
    Historically, Indiana has recognized two basic forms of
    employment: (1) employment for a definite or ascertainable
    term; and (2) employment at-will. If there is an employment
    contract for a definite term, and the employer has not reserved
    the right to terminate the employment before the conclusion of
    the contract, the employer generally may not terminate the
    employment relationship before the end of the specified term
    except for cause or by mutual agreement. If there is no definite
    or ascertainable term of employment, then the employment is at-
    will, and is presumptively terminable at any time, with or
    without cause, by either party.
    Orr v. Westminster Vill. N., Inc., 
    689 N.E.2d 712
    , 717 (Ind. 1997) (footnote
    omitted).
    4
    Jones and Lockwood’s argument here is that they were at-will employees under the terms of their
    Employment Agreements. Insofar as Jones and Lockwood may have been able to claim at-will status by
    avoiding the Employment Agreements under a theory of fraud in the inducement, as explained in Issue One
    that theory is not available to them.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                         Page 24 of 25
    [25]   The Termination Clauses may have provided broad opportunities for OCU to
    end Jones’ and Lockwood’s employment, but the Employment Agreements
    unambiguously established a definite term for their employment with OCU.
    While the Employment Agreements were contracts for definite terms, the
    Termination Clauses also reserved OCU’s right to terminate Jones’ and
    Lockwood’s employment before the end of those terms under the conditions
    provided in those clauses, a right which OCU exercised. See 
    id.
     We agree with
    the trial court that the unambiguous language of the Employment Agreements
    precludes Jones and Lockwood’s at-will employment counts, and we affirm the
    trial court’s entry of judgment on the pleadings for OCU and Barber on those
    counts.
    Conclusion
    [26]   We affirm the trial court’s entry of judgment on the pleadings for OCU and
    Barber on all counts. 5
    [27]   Affirmed.
    Pyle, J., and Altice, J., concur.
    5
    Given our disposition, we need not consider Jones and Lockwood’s additional arguments regarding
    discovery.
    Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                         Page 25 of 25