MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 15 2017, 8:44 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Daniel W. Sherman                                       Robert A. Welsh
Valparaiso, Indiana                                     Morris A. Sunkel
                                                        Connor H. Nolan
                                                        Harris Welsh & Lukmann
                                                        Chesterton, Indiana
                                                        John E. Hughes
                                                        Kevin G. Kerr
                                                        Hoeppner Wagner & Evans, LLP
                                                        Valparaiso, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Douglas W. Klemz,                                       November 15, 2017
Appellant-Cross/Appellee-Respondent,                    Court of Appeals Case No.
                                                        64A05-1611-TR-2617
        v.                                              Appeal from the Porter Superior
                                                        Court
Horizon Bank, et al.,                                   The Honorable William E. Alexa,
Appellees-Cross/Appellants-Petitioners.                 Judge
                                                        The Honorable Katherine R.
                                                        Forbes, Magistrate
                                                        Trial Court Cause No.
                                                        64D02-1406-TR-5262




Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017        Page 1 of 21
      Riley, Judge.


                               STATEMENT OF THE CASE
[1]   Appellant-Beneficiary/Cross-Appellee, Douglas Klemz (Douglas), appeals the

      trial court’s Order, distributing the assets of the Larry A. Klemz Trust

      Agreement, in accordance with the proposed allocation submitted by the

      Appellee-Successor Trustee, Horizon Bank (Horizon), and with the approval of

      the Appellees-Beneficiaries/Cross-Appellants, Justin Klemz (Justin) and Brian

      Klemz (Brian).


[2]   We reverse and remand.


                                                  ISSUES
[3]   Douglas presents us with one issue on appeal, which we restate as follows:

      Whether the trial court erred in approving the distribution of the assets of the

      Larry A. Klemz Trust (Trust) as proposed by the Successor Trustee.


[4]   On Cross-Appeal, Justin and Brian present this court with one issue, which we

      restate as: Whether Douglas breached his fiduciary duty as Trustee of the

      Trust.


                      FACTS AND PROCEDURAL HISTORY
[5]   Larry Klemz (Larry) was a life-long entrepreneur and businessman, with real

      estate holdings and a printing company, Home Mountain Publishing (HMP).

      On March 8, 2005, Larry established the Trust, which was amended and

      restated in its entirety on April 15, 2009, and March 11, 2013, respectively. The

      Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 2 of 21
      Trust instrument created a Business Trust and a Residuary Trust. The Business

      Trust owned the stock and membership of HMP, the entity that operated the

      printing business, and 5-K Run, LLC, the entity that owned the real estate

      housing HMP. The Residuary Trust contained Larry’s remaining non-business

      assets. Pursuant to the terms of the Trust, Larry and Douglas were co-trustees,

      with Douglas, Justin, and Brian as designated primary beneficiaries. Upon

      Larry’s passing, Douglas would receive a 90% interest in the Business Trust,

      with Brian and Justin each receiving a 5% interest. Douglas had the first option

      to purchase both HMP and 5-K Run, and thereby become the sole owner of the

      Business Trust’s assets. The terms of the Trust further specified that the

      Residuary Trust would distribute no more than $10,000 to each of Larry’s eight

      grandchildren, not to exceed 10% of the net taxable value of the property then

      constituting the Trust estate. Following these advancements and factoring any

      advancements made to Douglas, Brian, or Justin prior to Larry’s death, the

      remaining balance of the Residuary Trust was to be distributed with 60% to

      Douglas, and 20% each to Brian and Justin.


[6]   Upon Larry’s passing on October 12, 2013, Douglas became the sole Trustee of

      the Trust and the operating manager of HMP and 5-K Run. Intending to carry

      on the family business, Douglas communicated with suppliers, buyers, and

      creditors of the company while managing the day-to-day operations. On

      November 19, 2013, Douglas executed a quitclaim deed to convey ownership of

      the real estate property at 3102 Cascade Drive (the Cascade Property) from the

      Residuary Trust to an LLC owned by himself. Immediately prior to


      Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 3 of 21
      transferring the Cascade Property, Douglas used $135,000 of the Trust’s funds

      to pay off the mortgage on the property.


[7]   On June 16, 2014, Brian and Justin filed a petition to docket the Trust and to

      remove Douglas as the Trustee because of a perceived breach of his fiduciary

      duties as Trustee. Finding that Douglas had conveyed property from the Trust

      to his wholly owned limited liability company, had kept income from this Trust

      asset for his personal use, and had not notified the other beneficiaries of this

      transfer, the trial court granted the petition on January 23, 2015. In the course

      of the litigation, the beneficiaries stipulated to the appointment of Horizon as

      the Successor Trustee, while Douglas continued as the operating manager of

      HMP and 5-K Run.


[8]   During the summer of 2015, Douglas expressed his intention to exercise his

      option to purchase the assets of the Business Trust. As a result of protracted

      negotiations, on August 24, 2015, Horizon and Douglas entered into two

      contracts, a Corporate Asset Purchase Agreement and a Real Property

      Purchase Offer (collectively, Agreements) to purchase certain assets from the

      Trust. The Corporate Asset Purchase Agreement provided for the sale of HMP

      to Douglas for the consideration of $400,000, “plus or minus allocations for

      inventory, accounts receivable, accounts payable and cash on hand as of the

      date of closing[,]” and subject to the “following contingencies and conditions:”


              a. This Agreement is contingent upon the purchaser obtaining the
              necessary financing in the amount of $200,000 at 5% interest;



      Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 4 of 21
              b. This Agreement is wholly contingent upon the Purchaser’s
              contemporaneous purchase of the real estate commonly known
              as 3602 Enterprise Avenue, Valparaiso Indiana upon which
              premises the Corporation is currently located;


              c. Any sale, transfer, and/or assumption as contemplated by the
              terms of this Agreement is wholly contingent upon the approval
              of said terms by each creditor and the [trial court].


      (Appellant’s App. Vol. III, pp. 8, 10). In executing the Corporate Asset

      Purchase Agreement, the parties agreed that “[t]ime is of the essence. Any time

      periods specified in this Agreement and any [sic] are calendar days and shall

      expire at midnight of the date stated unless the parties agree in writing to a

      different date and/or time.” (Appellant’s App. Vol. III, p. 12).


[9]   In the corresponding Real Property Purchase Offer, Douglas agreed to purchase

      3602 Enterprise Avenue for the amount of $1.7 million, contingent on Douglas

      “obtaining the necessary financing in the amount of $250,000 at 5% per annum

      for a period of time not to exceed 10 years, [Douglas’] completion of the

      contemporaneous purchase of the corporate assets of [HMP] and obtaining the

      approval of the [trial court].” (Appellant’s App. Vol. III, p. 13). The parties

      agreed that the “closing of the sale shall be on or before AUGUST 31, 2015,

      unless an extension of time is mutually agreed to in writing and signed by all

      parties. A reasonable extension of time shall be allowed for correcting defects

      in title and obtaining [c]ourt approval for a sale.” (Appellant’s App. Vol. III, p.

      13).



      Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 5 of 21
[10]   In light of Brian’s and Justin’s continued opposition to the terms of the sale,

       Horizon, as Successor Trustee, filed a petition on September 11, 2015, seeking

       the trial court’s approval to sell the assets of HMP and 5-K Run in accordance

       with the terms of the Agreements, as executed on August 24, 2015.

       Commencing September 21, 2015, the trial court conducted a three-day trial on

       Horizon’s petition and Brian’s and Justin’s allegations that Douglas had

       breached his fiduciary duties as trustee. On March 4, 2016, while the parties

       were still awaiting the trial court’s ruling after the September 21, 2015 hearing,

       Horizon filed its petition to complete the sale of assets of 5-K Run and HMP

       pursuant to the terms of the Agreements, previously filed, and requested the

       trial court to “take immediate action to consent to the sale and allow it to be

       completed at the earliest opportunity.” (Appellant’s App. Vol. III, p. 19).

       Again, Brian and Justin opposed the completion of the sale, arguing that the

       Agreements submitted by the Successor Trustee are not enforceable in that “the

       Successor Trustee’s testimony of the ‘purchase price’ and [Douglas’] testimony

       of the purchase price differed by more than $500,000.” (Appellant’s App. Vol.

       III, p. 36).


[11]   On March 8, 2016, the trial court issued its written order following its

       September 21, 2015 hearing. In its order, the trial court concluded, in pertinent

       part, as follows:


               2. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to the Cascade Property. The [c]ourt finds no
               misappropriation of Cascade or of rental income.


       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 6 of 21
        3. The [c]ourt finds that [Douglas] did not breach his fiduciary
        duty with respect to the sale of the Calumet Property.


        4. The [c]ourt finds that [Douglas] did not breach his fiduciary
        duty with respect to disclosure of information. All information
        was turned over to Brian and Justin. However, Brian and Justin
        did have to file Motions before the [c]ourt and are entitled to fees
        for that action.


        5. The [c]ourt finds that [Douglas] did not breach his fiduciary
        duty with respect to the collection of debt owed by [HMP] to the
        Trust.


        6. The [c]ourt finds that [Douglas] did not breach his fiduciary
        duty with respect to oral instructions.


        7. The [c]ourt finds Brian and Justin have no interest in, and,
        therefore, no right to the profits of [HMP]. It appears that
        neither Justin nor Brian was interested in the day to day
        operations of the business. Other than the proceeds of the sale of
        the business assets of share of stock, they had no expectancy or
        interest in the day to day operations of [HMP]. . . . The only
        operational interest they could possibly benefit from was that the
        financial condition of the business would be roughly reflected in
        the sale price. The Trust held the stock to which they held a
        minority interest. The [c]ourt rejects their arguments and hereby
        approves the sale of the business known as [HMP], and the real
        estate located at 3602 Enterprise Drive, Valparaiso, IN, to Larry




Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 7 of 21
                Klemz[ 1] under the terms set in the pleading seeking [c]ourt
                approval.


       (Appellant’s App. Vol. II, pp. 19-20).


[12]   After the trial court’s March 8, 2016 order, Horizon and Douglas proceeded to

       finalize the values on the Agreements in preparation of closing. Meanwhile,

       Douglas continued to manage the day to day operations of HMP. As such, on

       April 27, 2016, Douglas emailed Horizon, Brian, and Justin, notifying them:


                There are a handful of elements to determine as of the date of
                closing: Assets – cash on hand, inventory and accounts
                receivable and the Liabilities – short and long term liabilities.


                You’ve seen the preliminary numbers that I forwarded on April
                20th. Based on the snap shot at that moment in time, Justin and
                your combined 10% interest in the real estate and the business is
                about $30,933.60.


                My recommendation is that you accept that number and get the
                deal done. These are fair numbers based on the negotiated
                agreements between [Horizon] and I and, I guarantee, they will
                not improve with time. As Justin is aware, [HMP] has
                purchased a press which adds a significant dollar amount to the
                liabilities of the Corporation. The press purchase is a good and
                necessary decision for the business; however, it does not improve
                the value of the shares at all.




       1
         All parties agree that the trial court made a scrivener’s error and the sentence should read, in part, “and the
       real estate located at . . . to Douglas[.]”

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017             Page 8 of 21
       (Appellees’ App. Vol. II, p. 44).


[13]   During the continued negotiations between Horizon and Douglas, an inventory

       of HMP’s personal property was prepared as of May 31, 2016, and Douglas

       submitted to Horizon, as Successor Trustee, the bank statements for HMP and

       5-K Run, accounts receivable and accounts payable for HMP. In the midst of

       these negotiations, on June 3, 2016, Douglas filed a petition for relief and

       request for hearing further to the Trust and the trial court’s March 8, 2016

       ruling. In his petition, Douglas alerted the trial court to a manifest

       disagreement with Horizon’s interpretation of the Agreements. Specifically,

       Douglas informed the trial court that he had “always understood the Corporate

       Asset Purchase Agreement to be an Asset Minus Liabilities sale,” while the

       Successor Trustee advised him that it “interprets the [Corporate Asset Purchase

       Agreement] to be an ‘Asset Minus Accounts Payable (only) sale.’” (Appellant’s

       App. Vol. IV, p. 5). This difference in interpretation “increases the sale price to

       [Douglas] by over $600,000[.]” (Appellant’s App. Vol. IV, p. 6). Under these

       conditions, Douglas presented to the trial court that he could not “financially

       absorb that increase in sales price[.]” (Appellant’s App. Vol. IV, p. 7).


[14]   Five days following the filing of his petition, Douglas entered into a loan

       agreement with 1st Source Bank to finance the purchase and installation of the

       printing press, mentioned in Douglas’ April 27, 2016 email, for a total amount

       of $636,442. In exchange for the loan amount, 1St Source Bank obtained a

       secured interest in the assets of HMP and a mortgage encumbering the real

       estate owned by 5-K Run.

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017   Page 9 of 21
[15]   In response to Douglas’ petition, on June 10, 2016, Horizon filed a petition

       requesting the trial court to grant the specific bequests to the grandchildren, as

       provided under the Trust, and seeking specific guidance with respect to the

       payment of the Trust’s tax liabilities. On June 30, 2016, Horizon filed a second

       petition, requesting the trial court to adopt its interpretation of the Corporate

       Asset Purchase Agreement. Subsequently, on July 12, 2016, Horizon filed a

       petition to resign as Successor Trustee.


[16]   On September 21, 2016, the trial court heard argument by all parties on the

       issues presented by the parties’ petitions and issued its order on October 18,

       2016, which reflected, in part:


               1. The Corporate Asset Purchase Agreement dated the 24th day
                  of August, 2015, between the Successor Trustee and
                  [Douglas] is not ambiguous as approved by the [c]ourt in its
                  March 8, 2016 Order.


               ****


               5. The effective date of closing for the [Corporate] Asset
               Purchase Agreement and the Real Estate Agreement shall be
               May 31, 2016, with the actual closing to occur at the earliest
               opportunity.


               ****


               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED by the [c]ourt:




       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 10 of 21
               1. The petition of [Douglas] to interpret the Corporate Asset
                  Purchase Agreement dated the 24th day of August, 2015 as an
                  “asset minus liabilities” sale is Denied. The [c]ourt finds no
                  ambiguity in the Agreement and, accordingly, no extrinsic
                  evidence is admitted into the record. . . . The transaction
                  shall close as early as feasible with an effective Closing Date
                  of May 31, 2016.


       (Appellees’ App. Vol. II, pp. 3, 4). That same day, October 18, 2016, 1st Source

       Bank intervened in the proceedings.


[17]   The following day, October 19, 2016, Horizon filed a petition requesting an

       emergency hearing, informing the trial court of HMP’s cash flow problems and

       Douglas’ continued refusal to close on the sale pursuant to the Agreements.

       Horizon also advised the trial court that “1st Source Bank continues to demand

       that there be an injection of funds from the [T]rust to assist the Business in

       continuing its operation or it will commence legal action to demand immediate

       payment of any and all obligations owed to them by said entities.” (Appellant’s

       App. Vol. VII, p. 4).


[18]   Four days later, on October 26, 2016, the trial court conducted a hearing on

       Horizon’s petition. During the hearing, Horizon alerted the trial court that it

       had received a notice of default from 1st Source Bank with respect to HMP’s

       indebtedness, which advised Horizon that it was pursuing foreclosure

       proceedings and the appointment of a receiver. The Successor Trustee also

       testified to HMP’s cashflow problems and the difficulties in getting the

       Agreements closed. Upon questioning by Douglas, the Successor Trustee


       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 11 of 21
       admitted not knowing whether the contingencies of the Corporate Asset

       Purchase Agreement had been satisfied and conceded that Horizon did not

       have a “written consent from 1st Source Bank to move forward with the sale.”

       (Transcript p. 33). The trial court issued its Order on the emergency hearing on

       November 4, 2016, concluding:


               1. The [c]ourt grants [Horizon’s] request that [Douglas] receive,
                  as his distribution, the business and the real estate, assets of
                  the Business Trust and the funds that are shown on
                  [Horizon’s] proposed allocation which is attached and made a
                  part of this Order. This will allow [Douglas] to continue to
                  carry on the family business. [Douglas] should be able to
                  complete the purchase from his share of the Residuary Trust.


               2. That all of the remaining funds shall be distributed to [Brian]
                  and [Justin] pursuant to [Horizon’s] proposed allocation
                  which the [c]ourt has now adopted.


               3. That while the [c]ourt has allowed for $80,000.00 to be held
                  for fees and expenses, it is not entering [o]rders, at this time,
                  as to the exact amounts and distributions. Said sums shall be
                  held pending further [o]rder of [c]ourt.


       (Appellant’s App. Vol. II, p. 23).


[19]   Douglas now appeals. Brian and Justin cross-appeal. Additional facts will be

       provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review


       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 12 of 21
[20]   In reviewing a trial court’s order containing specific findings, the specific

       findings control only as to the issues they cover, and a general judgment

       standard applies to any issues upon which the trial court has not made findings.

       In re Estate of Stayback, 38 N.E.3d 705, 710 (Ind. Ct. App. 2015). We review

       such findings by determining whether the evidence supports the findings and

       whether the findings support the judgment. Id. We will reverse only when the

       judgment is shown to be clearly erroneous, i.e., when it is unsupported by the

       findings of fact and conclusions entered thereon, or when the trial court applies

       an incorrect legal standard. Id. We defer substantially to the trial court’s

       findings of fact, but we evaluate conclusions of law de novo. Id.


                                            II. Division of the Trust


[21]   In its Order on “Successor Trustee’s Petition for Emergency Hearing with

       respect to the Corporate Assets and the Real Property Purchase,” issued on

       November 4, 2016, the trial court granted Horizon’s distribution of the Trust as

       “shown on [Horizon’s] allocation which is attached and made a part of this

       Order.” (Appellant’s App. Vol. II, p. 23). While the trial court omitted to

       physically attach Horizon’s allocation, the proposed allocation had been made

       part of Horizon’s Petition and all parties appear to be in agreement that the trial

       court “presumably” referenced Horizon’s exhibit in its Order. (Appellant’s Br.

       p. 15). During the hearing preceding the trial court’s Order, the parties revisited

       the provisions of the Corporate Asset Purchase Agreement and the Real

       Property Purchase Order in light of the recent cash flow problems of HMP and

       1st Source Bank’s demand for payment on HMP’s indebtedness in the amount

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 13 of 21
       of $1,091,714 and 5-K Run in the amount of $1,336,811. Again, Horizon

       insisted that it was “trying to close under the terms and conditions of the”

       Agreements and requested the trial court to approve the sale in accordance

       therewith. (Tr. p. 23). Douglas disputed the terms of the Agreements and the

       compliance with the contingencies specified therein.


[22]   On appeal, Douglas now contends that the “Agreements that the trial court

       attempts to force upon the parties are unenforceable on their face.”

       (Appellant’s Br. p. 16). Referencing the drastically changed circumstances with

       the appearance and actions of 1st Source Bank, Douglas maintains, among

       other arguments, that because 1st Source Bank’s court-appointed receiver took

       possession of the assets of HMP and 5-K Run, no consideration exists to

       support the Agreements. Consequently, there is no printing business to

       purchase and continue. Ignoring recent developments, Horizon, as well as

       Brian and Justin, argue that the trial court’s allocation and distribution of Trust

       assets should be affirmed.


[23]   During the hearing, counsel for 1st Source Bank confirmed that it had notified

       the Successor Trustee of HMP’s and 5-K Run’s indebtedness and default and

       advised Horizon that it was “currently working on the actions to foreclose on

       the real estate and the equipment and other assets. We’re going to ask to have a

       receiver appointed as well so those will be on file if not today, tomorrow.” (Tr.

       p. 4). However, despite the parties’ awareness of these developments and the

       trial court being notified of concurrent important proceedings in a different

       tribunal, the trial court failed to take the opportunity to examine the record.

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 14 of 21
       Pursuant to Indiana Trial Rule 201, a court “may take judicial notice on its

       own” of a fact that “can be accurately and readily determined from sources

       whose accuracy cannot reasonably be questioned;” and of the existence of

       “records of a court of this state.” In Fisher v. State, 878 N.E.2d 457, 462 (Ind.

       Ct. App. 2007), we determined that “it is clear that Indiana appellate courts

       take judicial notice of records on file with that court in relation to a related

       proceeding.” See also In re Paternity of P.R., 940 N.E.2d 346, 349 (Indiana Trial

       Rule 201 allows courts to judicially notice records beyond those in the cases

       before them); Pigman v. Ameritech Pub., Inc., 650 N.E.2d 67, 69 (Ind. Ct. App.

       1995). Both Douglas and Horizon included in their appellate appendices

       certain orders issued by the trial court in the cause of 1st Source Bank against

       HMP, et al., which unquestionably establish that all assets of HMP and 5-K

       Run have entered into receivership to satisfy 1st Source Bank’s secured debt,

       and have been approved by the trial court on January 4, 2017, to be auctioned

       off. As a result, HMP’s business is now closed and all assets of HMP and 5-K

       Run have been sold.


[24]   Without even discussing the trial court’s omission to inquire into the

       satisfaction of the Agreements’ contingencies and conditions, we find that the

       Agreements can no longer be approved and enforced as written as no

       consideration exists. To have a legally binding contract there must generally be

       an offer, acceptance, and consideration. Ind. Dept. of State Revenue v. Belterra

       Resort Indiana, LLC, 935 N.E.2d 174, 179 (Ind. 2010). To constitute

       consideration, there must be “either a benefit to the party making the promise,


       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 15 of 21
or a loss or detriment to the party to whom the promise is made.” OVRS

Acquisition Corp. v. Cmty. Health Servs., Inc., 657 N.E.2d 117, 126 (Ind. Ct. App.

1995), trans. denied. In the end, “consideration—no matter what its form—

consists of a bargained-for exchange.” Belterra Resort Indiana, LLC, 935 N.E.2d

at 179. In exchange for the promise to pay $400,000, Douglas wanted to obtain

the benefit of HMP’s and 5-K Run’s ownership from the Successor Trustee.

However, due to the foreclosure proceedings instituted by 1st Source Bank, the

Trust no longer includes HMP and 5-K Run and, therefore, Horizon is not in a

position to transfer ownership of these assets to Douglas. Thus, lacking

consideration, the Agreements are not valid. 2 Accordingly, the trial court erred

in granting the distribution of the assets in accordance with the provisions of the

Agreements. 3 We reverse the trial court’s Order and remand to the trial court

to calculate a new distribution and allocation of the remaining assets in the

Trust, if any, in accordance with the provision of the Trust instrument.




2
 Although Horizon did not file a complaint for specific performance, it should be noted that when the
subject matter of a contract is sold to an unrelated third party, it is beyond the control of the parties and the
court may not grant specific performance. See UFG, LLC v. Southwest Corp., 848 N.E.2d 353, 361 (Ind. Ct.
App. 2006), trans. denied. Accordingly, because no complaint for specific performance was filed, we will not
address the parties’ allegations with respect to the impossibility of performance and damages. See Bernel v.
Bernel, 930 N.E.2d 673, 683 (Ind. Ct. App. 2010) (impossibility is an affirmative defense to performance of an
executory contract and is generally invoked as a defense to an action for damages), trans. denied.
3
  Throughout their briefs, both Horizon, on the one hand, and Brian and Justin, on the other, argue that we
should affirm the trial court because the trial court had ordered the parties to use May 31, 2016, as the
effective closing date for the Agreements. Therefore, they argue that the sale price can be calculated and
ownership can be transferred as of that effective date, regardless of later developments. Although we agree
that in so far that the trial court ordered May 31, 2016 as the closing date of the Agreements, nevertheless, we
would still conclude that the Agreements are not enforceable as non of the contingencies specified in the
Agreements—most notably 1st Source Bank’s approval to the sale—were satisfied.

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 16 of 21
                                             III. Fiduciary Duties


[25]   In their cross-appeal, Brian and Justin contend that the trial court erred in

       concluding that Douglas did not breach his fiduciary duty as Trustee.


[26]   However, in its order of March 8, 2016, the trial court concluded, in part, that:


               2. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to the Cascade Property. The [c]ourt finds no
               misappropriation of Cascade or of rental income.


               3. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to the sale of the Calumet Property.


               4. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to disclosure of information. All information
               was turned over to Brian and Justin. However, Brian and Justin
               did have to file Motions before the [c]ourt and are entitled to fees
               for that action.


               5. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to the collection of debt owed by [HMP] to the
               Trust.


               6. The [c]ourt finds that [Douglas] did not breach his fiduciary
               duty with respect to oral instructions.


       (Appellant’s App. Vol. II, pp. 19-20).


[27]   Accordingly, the issue of Douglas’ purported breach of fiduciary duty was

       conclusively decided by the trial court in its order of March 8, 2016. Although

       the trial court failed to make a specific determination in writing with respect to

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 17 of 21
       this individual claim of breach of fiduciary duty for the order to be a final

       judgment as to that claim, the trial court never ruled on the issue of fiduciary

       duties again even though Brian and Justin reiterated this claim during the

       course of the proceedings. See Indiana Appellate Rule 2(H). Even assuming

       that the issue of Douglas’ purported breach was not finally decided upon in the

       trial court’s March 8, 2016 order, the issue would be more appropriately raised

       after a final decision is reached in this cause. See Shuler v. Estate of Botkins, 970

       N.E.2d 164, 167 (Ind. Ct. App. 2012) (“[O]rders issued by a probate court are

       not final until the estate is closed.”)


                                            CONCLUSION
[28]   Based on the foregoing, we conclude that the trial court erred in approving the

       distribution of the Trust, as proposed by the Successor Trustee. We further

       conclude that the cross-appeal is not properly before us.


[29]   Reversed and remanded for further proceedings.


[30]   Pyle, J. concurs


[31]   Robb, J. concurring in part and dissenting in part with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 18 of 21
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Douglas W. Klemz,                                        Court of Appeals Case No.
                                                                64A05-1611-TR-2617
       Appellant-Cross/Appellee-Respondent,

               v.

       Horizon Bank, et al.,
       Appellees-Cross/Appellants-Petitioners.



       Robb, Judge, concurring in part and dissenting in part.


[32]   I concur in the majority’s decision with respect to the division of the trust.

       However, I dissent from the majority’s decision that Brian and Justin’s cross-

       appeal issue was “conclusively decided by the trial court in its order of March 8,

       2016” and that the cross-appeal is not properly before us. See slip op. at ¶ 27.


[33]   Even if Brian and Justin’s claim was “finally decided” by the March 8, 2016

       order, see id., an appeal of the trial court’s disposition of that claim is not

       foreclosed. The March 8, 2016 order was not a final order. The fact that the

       trial court never ruled on the issue of Douglas’ fiduciary duties again is

       immaterial. For purposes of deciding what is a final order, we do not look issue

       by issue – we look at the case as a whole. Appellate Rule 2(H) defines a “final



       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 19 of 21
       order” as an order that “disposes of all claims as to all parties.” 4 If an order

       does less than that, the trial court must make a specific determination in writing

       with respect to an individual claim for the order to be a final judgment as to that

       claim. Following the March 8, 2016 order, the question of how to distribute the

       estate remained, a question addressed by the November 4, 2016 order. The

       March 8, 2016 order did not dispose of all claims as to all parties, nor did the

       trial court make an express determination that there was no just reason for

       delay and direct entry of judgment as to Brian and Justin’s claim. Therefore,

       the March 8, 2016 was not a final judgment as to any claim; it was an

       interlocutory order. Brian and Justin’s failure to appeal within thirty days of this

       interlocutory order did not waive their right to appeal the order. See Keck v.

       Walker, 922 N.E.2d 94, 99 (Ind. Ct. App. 2010) (“A claim of error in an

       interlocutory order, even an interlocutory order which is appealable as of right,

       is not waived for failure to take an interlocutory appeal . . . .”).


[34]   Douglas’ Notice of Appeal designates as the appealed order or judgment both the

       March 8, 2016 and the November 4, 2016 interlocutory orders. I would

       therefore decide the issue raised by Brian and Justin now in the interest of

       judicial economy. But because the majority has chosen not to decide the issue,

       I reiterate and emphasize that Brian and Justin’s claims of error in the March 8,




       4
        Had the March 8, 2016 order been a final judgment disposing of all claims as to all parties, the case would
       have been closed and any further litigation would have borne a separate cause number. That is not the case
       here.

       Court of Appeals of Indiana | Memorandum Decision 64A05-1611-TR-2617 | November 15, 2017 Page 20 of 21
       2016 interlocutory order can be raised by a timely notice of appeal after a final

       order is entered in this case, whenever that might be. See slip op. at ¶ 27.


[35]




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