## Facts

- Members of the Duck family owned and operated the Colonial Apartments in Indianapolis.
- Donald C. Duck, acting for the family, sent Gregory & Appel a letter stating terms that would be acceptable and inviting a “proposal” to purchase the property.
- Gregory & Appel treated the letter as an offer and sent back a prepared real-estate purchase contract, labeled as an offer to purchase, with earnest money.
- The proposed contract differed from the terms described in Duck’s letter and was not executed by the Ducks.
- The Ducks rejected the proposed deal and returned the earnest money.
- Gregory & Appel sued for a declaratory judgment that a contract existed and sought specific performance requiring conveyance.
- The trial court granted the Ducks’ motion for judgment on the pleadings under Indiana Trial Rule 12(C), and Gregory & Appel appealed.

## Issues

1. Whether the trial court’s ruling was properly treated as a Rule 12(C) judgment on the pleadings, rather than a Rule 12(B)(6) dismissal (with an amendment as of right) or a summary judgment (requiring genuine-issue analysis based on external materials).
2. Whether the pleadings and attached exhibits established an enforceable contract for the sale of the Colonial Apartments.

## Decision

- The court affirmed the grant of judgment on the pleadings for the Ducks.
- The ruling was properly analyzed under Trial Rule 12(C) because the trial court relied only on the pleadings and exhibits attached to them.
- No contract was formed because Duck’s letter was a solicitation for an offer (or agreement to agree), not a binding offer capable of acceptance.
- Gregory & Appel’s response operated as an offer or counteroffer, and the Ducks never accepted it.
- The lack of execution by the Ducks supported the absence of mutual assent.

## Legal Principles

- On a Rule 12(C) motion, a court may consider exhibits attached to and made part of the pleadings; doing so does not convert the motion into summary judgment.
- A communication inviting a proposal or further negotiation may be a solicitation of offers rather than a present commitment to contract.
- Acceptance must match the offer’s terms; a response that varies the terms is a counteroffer and does not form a contract without acceptance by the original offeror.
- In real-estate transactions, the absence of executed documents may confirm that the parties did not objectively manifest mutual assent.

## Conclusion

The court held that the parties’ writings showed only negotiations: the seller’s letter solicited a proposal and the buyer’s proposed contract materially differed and was never accepted or executed, so no enforceable agreement existed and judgment on the pleadings was proper.


Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46 (Ind. Ct. App. 1984)