liquidated damages clause in Indiana

2017Id. [15] Although a plaintiff seeking to enforce a liquidated damages clause need not prove actual damages, case law discussing the sufficiency of the evidence to support an award of actual damages in the form of lost profits is nevertheless instructive here.

2012“The question whether a liquidated damages clause is valid, or whether it constitutes a penalty, is a pure question of law for the court.” Gershin v. Demming, 685 N.E.2d 1125, 1128 (Ind.Ct.App.1997).

2014Rogers v. Lockard, 767 N.E.2d 982, 991 (Ind. Ct. App. 2002).

2012Rogers v. Lockard, 767 N.E.2d 982, 990 (Ind.Ct.App.2002).

2018As a result, our court has determined that although “a party who seeks to enforce a liquidated damages clause need not prove actual damages,” it “may be required to show a correlation between the liquidated damages and actual damages in order to assure that a sum charged may fairly be attributed to the breach.” Id.

2018As a result, our court has determined that although "a party who seeks to enforce a liquidated damages clause need not prove actual damages," it "may be required to show a correlation between the liquidated damages and actual damages in order to assure that a sum charged may fairly be attributed to the breach." Id.

2014In Dean v. Kruse, we set forth certain factors for consideration in determining whether a provision constitutes a penalty or a liquidated damages clause, but acknowledged that there “are no hard and fast guidelines to follow.” 973 N.E.2d at 591 - 92.

2014In Dean v. Kruse, we set forth certain factors for consideration in determining whether a provision constitutes a penalty or a liquidated damages clause, including how the provision is labeled, but acknowledged that there “are no hard and fast guidelines to follow.” 973 N.E.2d at 591-92 .

2000"Covenants not to compete are agreements in restraint of trade, and as such, they are not favored by Indiana *966 courts and are to be narrowly construed." Norlund v. Faust, 675 N.E.2d 1142, 1153 (Ind.Ct.App.1997), reh'g denied, trans. denied.

2000“Covenants not to compete are agreements in restraint of trade, and as such, they are not favored by Indiana courts and are to be narrowly construed.” Norlund v. Faust, 675 N.E.2d 1142, 1153 (Ind.Ct.App.1997), reh’g denied, trans. denied.

2014And the existence of the liquidated damages clause is not an admission of the adequacy of a legal remedy; rather, it is an acknowledgement that a complete assessment of money damages following a breach “would be uncertain and difficult to ascertain.” 5 Patel, 887 N.E.2d at 150 .

2009See Patel v. United Inns, Inc., 887 N.E.2d 139, 150 (Ind.Ct.App.2008).

2018Our supreme court has stated that “the Court will almost always uphold [a liquidated damages clause for violation of a covenant not to compete] unless the amount is grossly disproportionate to the Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 33 of 48 loss and far beyond any possible damages that could be incurred.” Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 284 (Ind. 1983) (emphasis added).

2018Our supreme court has stated that "the Court will almost always uphold [a liquidated damages clause for violation of a covenant not to compete] unless the amount is grossly disproportionate to the loss and far beyond any possible damages that could be incurred." Raymundo v. Hammond Clinic Ass'n , 449 N.E.2d 276 , 284 (Ind. 1983) (emphasis added).

2017This court has often explained that lost profits need not be proven with mathematical certainty, and such damages “are not uncertain where there is testimony that, while not sufficient to put the amount beyond doubt, is sufficient to enable the factfinder to make a fair and reasonable finding as to the proper damages.” Berkel & Co. Contractors, Inc. v. Palm & Assocs, Inc., 814 N.E.2d 649, 659 (Ind. Ct. App. 2004).

2014But the liquidated damages clause does not require that Pinnacle acquiesce in the alleged breach of the contract, see Nat’l Advertising Co. v. Wilson Auto Parts, Inc., 569 N.E.2d 997, 1001 (Ind.Ct.App.1991), and injunctive relief may be especially appropriate to protect Pinnacle from the loss of the personal good will that it purchased.

2014But the liquidated damages clause does not require that Pinnacle acquiesce in the alleged breach of the contract, see Nat’l Advertising Co. v. Wilson Auto Parts, Inc., 569 N.E.2d 997, 1001 (Ind.Ct.App.1991), and injunctive relief may be especially appropriate to protect Pinnacle from the loss of the personal good will that it purchased.

2014In general, “[a] liquidated damages clause provides for the forfeiture of a stated sum of money upon a breach of contract without proof of damages.” Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013), trans. denied.

2014In general, “[a] liquidated damages clause provides for the forfeiture of a stated sum of money upon a breach of contract without proof of damages.” Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind.Ct.App.2013), trans. denied.

2013A liquidated damages clause “applies to a specific sum of money that has been expressly stipulated by the parties to a contract as the amount of damages to be recovered by one party for a breach of the agreement by the other....” Time Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 893 (Ind.2004).

2013A liquidated damages clause “applies to a specific sum of money that has been expressly stipulated by the parties to a contract as the amount of damages to be recovered by one party for a breach of the agreement by the other . . . .” Time Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 893 (Ind. 2004).

2012Kruse I, 932 N.E.2d at 767, 769 .

2012Corvee, Inc. v. French, 943 N.E.2d 844, 847 (Ind. Ct. App. 2011).

2005The earnest money is similar to an account stated, inasmuch as it is "an agreement between parties that all items of account and the balance struck are correct, together with a promise, express or implied, to pay the balance." Urbanational Developers, Inc. v. Shamrock Eng'g, Inc., 372 N.E2d 742, 750, 175 Ind.App. 416, 428 (1978).

2002See Paul, 726 N.E.2d at 321 .

1997Where the sum stipulated in the agreement is not greatly disproportionate to the loss likely to occur, the provision will be accepted as a liquidated damages clause and not as a penalty, Nylen v. Park Doral Apartments, 535 N.E.2d 178, 184 (Ind.Ct.App.1989), trans. denied, but where the sum sought to be fixed as liquidated damages is grossly disproportionate to the loss which may result from the breach, the courts will treat the sum as a penalty rather than as liquidated damages.

1997Nylen, 535 N.E.2d at 178 .

1997Czech, 143 Ind.App. at 463 , 241 N.E.2d at 274 (citing Beiser v. Kerr, 107 Ind.App. 1, 8 , 20 N.E.2d 666, 669 (1939)).

1997Czech, 143 Ind.App. at 463 , 241 N.E.2d at 274 (citing Beiser v. Kerr, 107 Ind.App. 1, 8 , 20 N.E.2d 666, 669 (1939)).