Steven R. Brandenburg v. First Republic Mortgage Corporation ( 2012 )


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  •  Pursuant to Ind.Appellate Rule 65(D), this
    Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
    KEVIN L. MOYER                                     DANIEL D. TRACHTMAN
    Moyer & Irk, P.C.                                  BRIAN D. BURBRINK
    Lebanon, Indiana                                   Wooden & McLaughlin, LLP
    Indianapolis, Indiana
    FILED
    IN THE                                      Sep 24 2012, 9:29 am
    COURT OF APPEALS OF INDIANA                                   CLERK
    of the supreme court,
    court of appeals and
    tax court
    STEVEN R. BRANDENBURG,                             )
    )
    Appellant-Plaintiff,                        )
    )
    vs.                                 )    No. 29A02-1201-PL-70
    )
    FIRST REPUBLIC MORTGAGE                            )
    CORPORATION,                                       )
    )
    Appellee-Defendant.                         )
    )
    APPEAL FROM THE HAMILTON SUPERIOR COURT
    The Honorable Daniel J. Pfleging, Judge
    Cause No. 29D02-1010-PL-1301
    September 24, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    VAIDIK, Judge
    Case Summary
    Steven R. Brandenburg appeals the trial court’s grant of summary judgment in
    favor of First Republic Mortgage Corporation on his unjust-enrichment claim. Finding
    no authority for the sole argument that Brandenburg makes in his Appellant’s Brief and
    that Brandenburg has waived his other arguments by not making them until his Reply
    Brief, we affirm the trial court’s grant of summary judgment in favor of First Republic.
    Facts and Procedural History
    Brandenburg has been employed in the mortgage industry for many years. From
    approximately 1988 to 1999, Brandenburg worked at GMAC Mortgage Company in
    Indianapolis. Brandenburg’s employment at GMAC overlapped with that of Robert
    Waddey. After Brandenburg left GMAC in 1999, he did not speak to Waddey again until
    the events in this case.
    First Republic is an Indianapolis-based mortgage company. Michael Osterling is
    President and David Richey is Vice-President.        Brandenburg met First Republic’s
    Osterling on a golf course during the spring or summer of 2008. Brandenburg had no
    relationship with First Republic but had heard of the company given that people in the
    mortgage industry have a general familiarity with other mortgage companies.
    In August 2008, Brandenburg learned from an insider that his former employer,
    GMAC, intended to close its Indiana retail brokerage business. Brandenburg was self-
    employed at the time and had been considering making a change; therefore, he viewed
    this information as an “opportunity” for himself and First Republic. Appellee’s App. p.
    28.
    2
    Accordingly, on August 29, Brandenburg contacted Osterling and informed him
    that an Indiana mortgage company might be closing its local offices. Brandenburg
    suggested that it could be a great opportunity for First Republic to bring on several
    employees at one time. Osterling was interested in learning more, and a meeting was
    scheduled for September 2.
    In the meantime, Brandenburg contacted Waddey, who was still employed as
    GMAC’s district manager. This was the first contact between Brandenburg and Waddey
    in several years.    They discussed the impending termination of GMAC’s Indiana
    mortgage business and Brandenburg’s meeting with First Republic.         Waddey gave
    Brandenburg permission to let Osterling and Richey know that Waddey was interested in
    talking to First Republic.
    Brandenburg met with Osterling and Richey at First Republic’s offices on the
    morning of September 2. During this meeting, Brandenburg disclosed his knowledge that
    GMAC was closing. Brandenburg suggested that he would come on as a loan officer and
    in return for helping First Republic recruit GMAC’s staff, he would receive
    compensation for their production. Brandenburg proposed a compensation scheme while
    Osterling and Richey listened. Osterling and Richey told Brandenburg that a written
    employment proposal from First Republic would be forthcoming.
    Brandenburg left the September 2 meeting with the impression that he and First
    Republic had arrived at a two-part agreement: (1) Brandenburg would receive 65%
    commission for any loans that he originated and (2) he would receive 10% of the service-
    retained premiums generated by the former GMAC employees. 
    Id. at 30.
    Brandenburg
    3
    concedes, however, that he had no idea what First Republic’s understanding may have
    been. 
    Id. Brandenburg returned
    to First Republic on the afternoon of September 2
    accompanied by Waddey, and the two of them met with Osterling and Richey. The
    group discussed that Bob Wampler, another GMAC employee, would be a critical person
    in terms of his ability to influence the other loan officers to join First Republic. Waddey
    was not offered a job during the September 2 meeting; instead, he and First Republic
    scheduled a second meeting to enable Waddey to further explore First Republic’s culture
    and philosophy. The second meeting involved only Waddey, Osterling, and Richey.
    Waddey set up another meeting for the former GMAC employees to listen to a
    presentation by First Republic. First Republic ultimately hired Waddey, Wampler, and
    twelve other GMAC employees.          However, Waddey was the only former GMAC
    employee Brandenburg introduced to First Republic. Although Brandenburg no doubt
    facilitated the initial introduction on September 2, Waddey undertook an independent
    evaluation of whether to pursue employment with First Republic, including weighing a
    competing job offer. In fact, Waddey informed Brandenburg that he had no intention of
    working as a subordinate to Brandenburg at First Republic. Brandenburg acknowledges
    that he did not negotiate with First Republic on behalf of Waddey and left it up to
    Waddey to negotiate his own deal with First Republic.
    On October 20, 2008, First Republic sent Brandenburg a written offer of
    employment.     
    Id. at 52.
       The offer letter proposed the following compensation
    arrangement: (1) it offered Brandenburg a position as a loan officer; (2) it offered to pay
    4
    him in accordance with First Republic’s standard loan officer’s compensation’s schedule,
    which was described in the attached employee handbook; and (3) it offered to pay him
    additional compensation for “initiating our introductions to the former GMAC Central
    Indiana origination group,” which amounted to two basis points on the monthly closed
    loan volume for a maximum of twenty-four months on twelve originators which were
    then listed by name. 
    Id. To be
    eligible for the additional compensation, Brandenburg
    had to be employed for the same twenty-four months and produce “at an annualized rate
    of at least 4 million dollars per year in closed loan volume,” which was First Republic’s
    standard for a full-time loan officer.          
    Id. According to
    the employment offer, the
    additional compensation commenced “as of the date” of Brandenburg’s employment. 
    Id. The offer
    was valid through November 15. 
    Id. Upon receipt
    of the offer, Brandenburg called Osterling and said that the offer was
    different than what he had proposed during their September 2 meeting. According to
    Brandenburg, the employment package differed in the following respects: (1) it imposed
    a minimum annual production requirement; (2) it changed the override on the former
    GMAC employees from 10% to 2%1; and (3) the standard loan officer compensation
    schedule, as outlined in the employee handbook, did not provide that Brandenburg would
    be paid a 65% commission on whatever service-retained premiums he generated.
    At some point, Brandenburg told Osterling and Richey that he did not think the
    employment offer represented their agreement and that he would not agree to its terms.
    1
    The written employment offer says 2 points, not 2%. See Appellee’s App. p. 52.
    5
    First Republic did not receive a response to its written offer of employment, and
    Brandenburg has never worked for First Republic.
    On October 1, 2010, Brandenburg filed a complaint against First Republic alleging
    breach of contract and unjust enrichment; however, Brandenburg later withdrew his claim
    for breach of contract.2 First Republic filed a motion for summary judgment. Following
    a hearing, the trial court granted summary judgment in favor of First Republic. 
    Id. at 59.
    Brandenburg now appeals.
    Discussion and Decision
    Brandenburg contends that the trial court erred in granting summary judgment in
    favor of First Republic on his unjust-enrichment claim. In reviewing an appeal of a
    motion for summary judgment ruling, we apply the same standard applicable to the trial
    court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 
    2012 WL 3570379
    , *5, --- N.E.2d ---
    , --- (Ind. 2012). Summary judgment is appropriate where the designated evidence
    “shows 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.” Ind. Trial Rule 56(C). Review is limited to
    those facts designated to the trial court, T.R. 56(H), and “[a]ll facts and reasonable
    inferences drawn from those facts are construed in favor of the non-moving party.”
    Presbytery of Ohio 
    Valley, 2012 WL at 3570379
    *5 (quotation omitted).
    A claim for unjust enrichment is a legal fiction invented by the common-law
    courts in order to permit a recovery where the circumstances are such that under the law
    2
    It was not until the summary-judgment stage that Brandenburg made this concession. That is,
    Brandenburg conceded that summary judgment should be entered in favor of First Republic on his claim
    for breach of contract because the statute of frauds required any agreement to be in writing as their
    alleged agreement spanned thirty-six months. Appellant’s App. p. 17; Appellee’s App. p. 100-01.
    6
    of natural and immutable justice there should be a recovery. Zoeller v. E. Chi. Second
    Century, Inc., 
    904 N.E.2d 213
    , 220 (Ind. 2009), reh’g denied. “‘A person who has been
    unjustly enriched at the expense of another is required to make restitution to the other.’”
    
    Id. (quoting Restatement
    of Restitution § 1 (1937)). To prevail on a claim of unjust
    enrichment, a plaintiff must establish that a measurable benefit has been conferred on the
    defendant under such circumstances that the defendant’s retention of the benefit without
    payment would be unjust. 
    Zoeller, 904 N.E.2d at 220
    ; Bayh v. Sonnenburg, 
    573 N.E.2d 398
    , 408 (Ind. 1991), reh’g denied. Indiana courts articulate three elements for this
    claim: (1) a benefit conferred upon another at the express or implied consent of the other
    party; (2) allowing the other party to retain the benefit without restitution would be
    unjust; and (3) the plaintiff expected payment. Woodruff v. Ind. Family & Social Servs.
    Admin., 
    964 N.E.2d 784
    , 791 (Ind. 2012), cert. filed, 
    81 U.S.L.W. 3003
    (U.S. June 18,
    2012) (No. 11-1523).
    Brandenburg’s sole argument in his Appellant’s Brief is that in order to survive
    summary judgment on his unjust-enrichment claim, all he must do is identify a wrong
    action on the part of First Republic. Appellant’s Br. p. 9. As support for this argument,
    Brandenburg partly quotes a sentence from American United Life Insurance Co. v.
    Douglas, 
    808 N.E.2d 690
    , 697 (Ind. Ct. App. 2004) (the full sentence is: “Whether the
    actions of AUL rise to the level necessary to establish unjust enrichment is a
    determination to be made beyond the summary judgment stage of the litigation.”), trans.
    denied. Brandenburg, however, quotes this sentence from Douglas as if it is this Court’s
    holding. But this sentence is not this Court’s holding; rather, this sentence is from the
    7
    trial court’s summary-judgment order. Despite the fact that First Republic pointed out
    this error to Brandenburg in the trial court below and again on appeal, Brandenburg
    continues to erroneously rely on this statement as if it were authority. In fact, this Court
    did not even address the merits of unjust enrichment in Douglas.                See 
    id. at 705.
    Accordingly, Douglas simply does not support Brandenburg’s position that in order to
    defeat summary judgment on an unjust-enrichment claim, all a plaintiff must do is
    identify a wrongful action on the part of the defendant.3
    And notably, it is not until Brandenburg’s reply brief that he even addresses the
    elements of unjust enrichment. A reply brief, however, is simply too late to address the
    merits of a claim for the first time. See Ind. Appellate Rule 46(C) (“No new issues shall
    be raised in the reply brief.”). We therefore affirm the trial court’s entry of summary
    judgment in favor of First Republic.
    Affirmed.
    MATHIAS, J., and BARNES, J., concur.
    3
    Brandenburg also cites a Connecticut case, Crowell v. Danforth, 
    609 A.2d 654
    (Conn. 1992),
    which we note is not binding on us. See Appellant’s Br. p. 9.
    8
    

Document Info

Docket Number: 29A02-1201-PL-70

Filed Date: 9/24/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021