ATTORNEYS FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Thomas D. Collignon                                          Mark J.R. Merkle
Patrick J. Dietrick                                          Greg A. Small
Michael B. Knight                                            Indianapolis, Indiana
Indianapolis, Indiana

William W. Wilkins

                                                                              FILED
Dennis J. Lynch
Travis C. Wheeler
Columbia, South Carolina
                                                           Jul 31 2012, 12:05 pm
______________________________________________________________________________

                                                                                   CLERK
                                               In the                            of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




                           Indiana Supreme Court
                              _________________________________

                                         No. 49S02-1201-CT-4

JAMES C. PURCELL,
                                                             Appellant (Plaintiff below),

                                                 V.

OLD NATIONAL BANK,
                                                             Appellee (Defendant below),

                              _________________________________

              Appeal from the Marion Superior Court, No. 49D07-0408-CT-001517
                               The Honorable Gerald Zore, Judge
                            _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1005-CT-482
                            _________________________________

                                             July 31, 2012

David, Justice.

        This case involves a trial court’s issuance of a directed verdict under Trial Rule 50(A).
The issue presented in this case is whether the trial court abused its discretion under Rule 50(A)
in its determination that the evidence presented by Purcell was insufficient to merit presentation
of the evidence to the jury. We hold that the trial court properly exercised its discretion and
affirm the ruling of the trial court in all respects.
                                Facts and Procedural History

       In 1998, Richard Knight and James Purcell established Midwest Fulfillment, a company
that provided order fulfillment services for various companies. In late 2001, Joseph Stein joined
Midwest Fulfillment as a ten percent shareholder and Chief Financial Officer. In June 2002, the
parties executed a stock redemption agreement, in which Purcell sold his majority interest in
Midwest Fulfillment to Knight and Stein. The redemption agreement called for payments to
Purcell of $1.2 million in four annual installments and monthly interest payments on the
outstanding balance. Furthermore, the redemption agreement gave Purcell a security interest in
Midwest Fulfillment’s assets and required Midwest Fulfillment to provide Purcell with monthly
and yearly financial statements. Under the redemption agreement, if Midwest Fulfillment’s
assets-to-liabilities ratio (or “current ratio”) fell below a certain level for three consecutive
months, Midwest Fulfillment would be in default and Purcell would gain 100% ownership of the
company.

       In late 2002, Midwest Fulfillment applied for a line of credit with Old National Bank.
Prior to issuing the loan, Old National Bank (Old National), through loan officer Joseph
Howarth, required Purcell to sign a subordination agreement that made Purcell’s security interest
in Midwest Fulfillment’s assets subordinate to Old National’s security interest in those assets.
Purcell signed the subordination agreement on December 30, 2002. Both Purcell and Old
National received monthly financial statements prepared by Midwest Fulfillment.

       In February and March 2003, Midwest Fulfillment’s current ratio fell below the level
specified in the redemption agreement. A third month of the current ratio falling below 1.0 as
specified in the redemption agreement would be a default and allow Purcell to exercise his rights
under the redemption agreement, subject to the overriding obligations of the subordination
agreement.    Midwest Fulfillment’s April balance sheet included a line item for income
designated as “Misc. Billing to Customers” in the amount of $613,461.19. The April profit and
loss statement reported Midwest Fulfillment’s net ordinary income as $695,210.44, which
prevented a technical default of the redemption agreement.

       Stein later admitted that this figure was based on invoices to Midwest Fulfillment’s
landlord for work that was neither ordered nor completed, and that the April 2003 balance sheet

                                               2
given to Purcell was not intended to reflect an accurate financial picture for Midwest Fulfillment.
But for the “Misc. Billing to Customers” line item, the current ratio would have been below the
designated level for three consecutive months, and Purcell would have had the right to take over
the company.

        By July 2003, Midwest Fulfillment was going out of business. The landlord chained the
doors, and without a space to conduct business, Midwest Fulfillment ceased operations and
turned remaining assets over to Old National. Old National liquidated those assets, but that was
still insufficient to pay off the loans.

        In a proceeding separate from the instant case, Purcell sued Midwest Fulfillment. During
that lawsuit, an interrogatory was posed to Stein asking for an explanation of several balance
sheet items between the months of February and June of 2003, one of which was the “Misc.
Billing to Customers” line item in the April 2003 balance sheet. Under oath, Stein answered
generally, “[a]ll instances were adjustments made to the receivable from Meridian Properties,
Inc. and /or Sharp Companies done in accordance with instruction from Joe Howarth at Old
National Bank to remain in compliance with the loan documents between Midwest and Old
National Bank.” More specifically, Stein had noted in the previous answer that “Midwest was
accrual basis . . . [and] that the receivable due from Meridian Properties, Inc. and/or Sharp
Companies was included as income. The inclusion of this receivable as income was done at the
instruction of Joe Howarth at Old National Bank.”

        Purcell brought claims against Old National for negligence, constructive fraud, actual
fraud, deception, and tortious interference with a contract. The matter proceeded to trial, and the
evidence at trial included Stein’s sworn interrogatory response from the Midwest Fulfillment
litigation. Plaintiff took the position that the interrogatory answer by Stein was proof that
Howarth, on behalf of Old National, directed Stein to knowingly make the false statements.
However, during their trial testimony in the instant case, both Stein and Howarth denied that the
April 2003 balance sheet was falsified at Howarth’s direction. Specifically, Stein disavowed his
response to interrogatory in the separate case; Stein explained that it was his decision to include
the inaccurate $613,461 amount under “Misc. Billing to Customers” and that Joe Howarth did
not instruct Stein to make the entry. In fact the trial testimony was stated clearly:


                                                  3
        Q: Did Mr. Howarth direct you to make that entry in the April 2003 financial
        statement under Miscellaneous Billing to Customers?

        A: He did not.

                                                 .   .   .

        Q: Now, the next line in your response says: “The inclusion of this receivable as
        income was done at the instruction of Joe Howarth of Old National Bank.” . . .

                                                 .   .   .

        A: Mr. Howarth did not instruct me to do that.

        At the close of Purcell’s case-in-chief, the trial court granted Old National’s motion for
judgment on the evidence on all claims including finding that Old National owed no duty to
Purcell.1 The trial court denied Old National’s request for statutory attorney fees. The Court of
Appeals affirmed the trial court’s ruling as to the issues of duty and attorney’s fees but reversed
the trial court’s judgment on the evidence as to Purcell’s claims of fraud, deception, and tortuous
interference with contract based on the interrogatory answer in the other litigation. We granted
transfer.

                           I. Trial Rule 50(A) Sufficiency Requirement

        The trial court granted Old National’s motion for judgment on the evidence pursuant to
Indiana Trial Rule 50(A). The Court of Appeals reversed, finding that Stein’s interrogatory
answer constituted sufficient evidence to preclude an entry of judgment on the evidence, despite
evidence to the contrary at trial, including an adamant denial from Stein that the interrogatory
was incorrect. Purcell v. Old Nat. Bank, 953 N.E.2d 527, 532 (Ind. Ct. App. 2011).

        This Court reviews a trial court’s issuance of judgment on the evidence by applying the
same standard that the trial court uses, looking only to the evidence and reasonable inferences
most favorable to the non-moving party. See Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003);



1
   Although the trial court’s rationale revolved around duty, only Purcell’s claims of negligence and
constructive fraud require the plaintiff to make a showing that Old National owed a duty to Purcell, while
the remaining claims are intentional torts. For this reason, the validity of the trial court’s Rule 50(A)
determination for fraud, deception, and tortious interference will be analyzed separately from the
judgment as to negligence and constructive fraud.
                                                     4
American Optical Co. v. Weidenhamer, 457 N.E.2d 181, 183 (Ind. 1983). Thus, the Court turns
to the text of Trial Rule 50, which provides the standard for judgment on the evidence.

       Trial Rule 50(A) states in relevant part: “Where all or some of the issues in a case tried
before a jury . . . are not supported by sufficient evidence . . . the court shall withdraw such issues
from the jury and enter judgment thereon . . . A party may move for such judgment on the
evidence.” Ind. Trial Rule 50(A) (emphasis added). The purpose of a party’s motion for
judgment on the evidence under Rule 50(A) is to test the sufficiency of the evidence presented
by the non-movant. Nesvig v. Town of Porter, 668 N.E.2d 1276, 1282–83 (Ind. Ct. App. 1996).

       In American Optical, this Court articulated the means by which a trial court may
determine whether evidence is “sufficient” to survive a motion for judgment on the evidence. In
that case, this Court stated that determining whether evidence was sufficient “requires both a
quantitative and a qualitative analysis.” American Optical, 457 N.E.2d at 184. Evidence fails
quantitatively only if it is wholly absent; that is, only if there is no evidence to support the
conclusion. Id. If some evidence exists, a court must then proceed to the qualitative analysis to
determine whether the evidence is substantial enough to support a reasonable inference in favor
of the non-moving party. See Dettman v. Sumner, 474 N.E.2d 100, 104–105 (Ind. Ct. App.
1985) (discussing and applying the two-part analysis of American Optical).

       “Qualitatively, . . . [evidence] fails when it cannot be said, with reason, that the intended
inference may logically be drawn therefrom; and this may occur either because of an absence of
credibility of a witness or because the intended inference may not be drawn therefrom without
undue speculation.”     American Optical, 457 N.E.2d at 184.            The use of such words as
“substantial” and “probative” are useful in determining whether evidence is sufficient under the
qualitative analysis.   Id.   Ultimately, the sufficiency analysis comes down to one word:
“reasonable.” See, e.g., Raess v. Doescher, 883 N.E.2d 790, 793 (Ind. 2008) (“A motion for
judgment on the evidence should be granted only when there is a complete failure of proof
because there is no substantial evidence or reasonable inference supporting an essential element
of the claim.” (emphasis added) (citation and internal quotation marks omitted)); Ross v. Lowe,
619 N.E.2d 911, 914 (Ind. 1993) (“If there is any probative evidence or reasonable inference to
be drawn from the evidence in favor of the plaintiff or if there is evidence allowing reasonable


                                                  5
people to differ as to the result, judgment on the evidence is improper.”); Teitge v. Remy Const.
Co., Inc., 526 N.E.2d 1008, 1010 (Ind. App. Ct. 1988) (“[J]udgment on the evidence is proper
only where there is a lack of evidence of probative value upon one or more of the factual issues
necessary to support a verdict, and no reasonable inference in favor of the plaintiff can be drawn
from this evidence.”).

        Purcell’s primary evidence in support of his allegations of fraud, deception, and tortious
interference with contract, which require proof of intentional misrepresentation or an inducement
of a breach of contract, are Stein’s statements made in response to interrogatories served in a
separate lawsuit.    Those statements were later explained and disavowed at trial.2                These
responses indicated that entries made by Stein to Midwest Fulfillment’s balance sheets between
February and June 2003 were made at the instruction of Joe Howarth at Old National, including
the line item “Misc. Billing to Customers.” Based on these responses, the quantitative element
of the sufficiency inquiry is met, because there exists some evidence presented at trial that may,
when viewed in isolation, lend support to Purcell’s desired conclusion that Old National had a
hand in Stein’s preparation of the Midwest balance sheets.

        However, a reading of Stein’s responses in context with his testimony at trial leads to the
conclusion that Purcell’s evidence does not meet the qualitative element of the sufficiency
analysis. In reality, nowhere in Stein’s interrogatory does he state that Old National told him to
make fraudulent entries. Stein’s trial testimony explains that Purcell’s reading of the response is
a misunderstanding, and Stein flat-out denies that the bank directed him to make fraudulent
entries on the balance sheets.       In fact, Stein’s interrogatory response states that all of the
adjustments to receivable entries inquired upon by the interrogatory were made at the instruction
of Old National, not just the “Misc. Billing to Customers” line item that contained the fraudulent
amount.


2
  Old National conceded at oral argument that Stein’s interrogatory responses were entered as substantive
evidence at trial pursuant to evidentiary rule 801(d)(1)(A). However, the Court has some reservations as
to whether a non-party’s disavowed interrogatory response may be admitted as substantive evidence as a
prior inconsistent statement made “at a trial, hearing or other proceeding, or in a deposition.” Evid. R.
801(d)(1)(A). Thus, it is unclear whether these interrogatory responses are more properly categorized as
merely impeaching, rather than substantive evidence. That said, the interrogatory responses were entered
as evidence without objection, and the issue is not squarely before the Court and need not be addressed in
the instant case.
                                                    6
         Moreover, the response accentuates that Old National gave the instruction “to remain in
compliance with the loan documents between Midwest and Old National Bank.”                         This is
certainly a reference to the requirement that Stein provide Old National with Midwest’s balance
sheets and financial information to remain in compliance with the company’s loan requirements.
And Stein testified at trial that he provided the bank with the same balance sheets that were
provided monthly to Purcell. Purcell’s reading of the interrogatory response would require the
unreasonable inference that Old National instructed Stein that “compliance with the loan
documents” mandated the inclusion of fraudulent entries to balance sheets that would be
submitted to the bank itself; this is absurd. Whatever perceivable conflict that may exist between
Stein’s interrogatory response and his trial testimony, it is minimal, at best. When Stein’s
interrogatory responses are viewed as a whole and in conjunction with his trial testimony, the
import is that this evidence—standing alone—is insufficient the support Purcell’s intentional tort
claims under our qualitative analysis.

         By its express language, Rule 50 acknowledges that a party must do more than simply
present some evidence; in addition, that evidence must also be sufficient evidence. Unlike a
motion for summary judgment under Rule 56, the sufficiency test of Rule 50(A) is not merely
whether a conflict of evidence may exist, but rather whether there exists probative evidence,
substantial enough to create a reasonable inference that the non-movant has met his burden.3
The crux of the qualitative failure analysis under Rule 50(A) is “whether the inference the
burdened party’s allegations are true may be drawn without undue speculation.” Dettman, 474
N.E.2d at 105 (citing American Optical, 457 N.E.2d at 183–84). At the close of Purcell’s case-
in-chief, no evidence had been presented showing that Old National specifically directed Stein to
include the fraudulent entry as Purcell alleges.          The only evidence4 presented linking Old
National to the fraudulent entry complained of is a generalized, ambiguous interrogatory

3
    Compare Indiana Rules of Procedure, Trial Rule 56 and Indiana Rules of Procedure, Trial Rule 50.
4
   Purcell’s briefs also reference evidence presented at trial to which the trial court sustained a hearsay
objection. Purcell notes that this evidence was never formally stricken and remained in the record;
however, the Court has little doubt that at the time the trial judge made the Rule 50(A) determination, the
trial judge would have understood that this hearsay was not cognizable evidence. For, “a trial judge is
presumed to know the intricacies and refinements of the rules of evidence and that he sifts the evidence
and weighs it in the light of his legal experience and expertise. He is thus able to separate the wheat from
the chaff, ignoring the extraneous, the incompetent and the irrelevant . . . .” King v. State, 155 Ind. App.
361, 366–67, 292 N.E.2d 843, 846–47, (Ind. Ct. App. 1973).

                                                     7
response, later explained at trial with the aid of direct and cross-examination. Without more, the
Court cannot say that the trial court abused its discretion in determining that Purcell’s inference
of fraud could not be found by a reasonable jury without engaging in undue speculation.

        Our decision does not alter the critical, invaluable, and constitutionally protected role of
the jury in Indiana’s system of jurisprudence. It remains true that a court is not free to engage in
the fact-finder’s function of weighing evidence or judging the credibility of witnesses to grant
judgment on the evidence, where fair-minded men may reasonably come to competing
conclusions. C.f. Neubacher v. Indianapolis Union Ry. Co., 33 N.E. 798, 799 (Ind. 1893).
Indeed, the function of weighing evidence and judging witness credibility is one which has
always been within the purview of the jury. That said, it is equally true that judges, at times,
may play a role in the ultimate determination of cases such as through judgment on the evidence
or summary judgment. This process helps to ensure the proper administration of our laws with
the added benefit of preserving judicial economy. Where, in a case such as this, the plaintiff fails
to present sufficient, probative evidence as to a necessary element of a claim, the trial judge is
within his or her discretion to issue judgment on the evidence pursuant to Rule 50(A).

                           II. Duty (Negligence & Constructive Fraud)

        In addition to agreeing with the trial court that Purcell did not present sufficient evidence
to sustain his intentional tort claims discussed above, this Court also agrees with the trial court’s
determination that Old National did not owe a duty to Purcell under these circumstances.5
Whether a defendant owes a duty of care to a plaintiff is a question of law, which the Court
reviews de novo. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). To establish a
negligence claim, a plaintiff must establish three elements, one of which is that the defendant
owed a duty of care to the plaintiff. Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011).
Similarly, a plaintiff must establish that a duty of care exists to prevail on a claim of constructive
fraud. Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996). “Absent a duty, there can be no




5
 The Court of Appeals arrived at the same conclusion in affirming the trial court’s decision with regard to
duty.
                                                    8
breach, and therefore, no recovery for the plaintiff in negligence.” Pfenning, 947 N.E.2d at 398
(citation omitted).6

          Old National asks that the Court adopt a “no customer, no duty” rule, which recognizes
that a bank should not owe a duty of care to an “undefined and unlimited category of strangers
who might interact with [the bank’s] customer.” Eisenberg v. Wachovia Bank, N.A., 301 F.3d
220, 226 (4th Cir. 2002); see also Athey Products Corp. v. Harris Bank Roselle, 89 F.3d 430,
435 (7th Cir. 1996) (holding that under Illinois law, a “lender owes no duty to protect third
parties from the credit risk of an insolvent borrower”). Old National contends that because
Purcell was not a customer and had no banking relationship with Old National, that no duty can
be found. This Court, like the Court of Appeals, finds no occasion to validate such a blanket rule
in this case. See Purcell v. Old Nat. Bank, 953 N.E.2d 527, 531 (Ind. Ct. App. 2011). And the
Court agrees with the basic rationale of the Court of Appeals that under these circumstances no
duty of care was owed to Purcell. Therefore, the trial court’s finding that Purcell’s negligence
and constructive fraud claims fail for want of duty is affirmed.

                                            III. Attorney’s Fees

          Finally, Old National argued on appeal that the trial court erred in declining to award
attorney’s fees to Old National following its ruling on its successful motion for judgment on the
evidence. A trial court may grant an award of attorney’s fees if a litigant “continued to litigate
the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or
groundless.” Ind. Code § 34-52-1-1(b)(2) (2008). The trial court’s decision to award attorney’s
fees under § 34-52-1-1 is subject to a multi-level review: the trial court’s findings of facts are
reviewed under the clearly erroneous standard and legal conclusions regarding whether the
litigant’s claim was frivolous, unreasonable, or groundless are reviewed de novo. R.L. Turner
Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012). Finally, the trial court’s
decision to award attorney’s fees and any amount thereof is reviewed for an abuse of discretion.
Id. A trial court abuses its discretion if its decision clearly contravenes the logic and effect of the
facts and circumstances or if the trial court has misinterpreted the law. Id.



6
    Likewise, absent the existence of a duty, a plaintiff cannot recover under a claim of constructive fraud.
                                                        9
         Old National contends that Purcell continued to litigate his claims despite knowing that
they were clearly groundless. A claim is groundless if no facts exist which support the legal
claim relied on and presented by the losing party. Emergency Physicians of Indianapolis v.
Pettit, 714 N.E.2d 1111, 1115 (Ind. Ct. App. 1999), adopted in part, 718 N.E.2d 753, 757 (Ind.
1999).    Although the facts presented at trial were insufficient to survive judgment on the
evidence, it remains true that some facts were presented in Purcell’s case-in-chief. As discussed
above, it is likely that Purcell satisfied the quantitative aspect of the sufficiency analysis by
presenting facts that potentially lend support to his conclusion. Thus, it cannot be said that “no
facts” existed in support of his legal claim at the time Purcell went to trial. Based on this
conclusion and on the strong deference afforded to the trial court in these matters, we hold that
the trial court did not abuse its discretion in denying Old National’s request for costs and
attorney’s fees.

                                           Conclusion

         The Court finds that there was not sufficient evidence presented in this case to withstand
a motion for judgment on the evidence on Purcell’s claims of fraud, deception, and tortious
interference with contract. Accordingly, the trial court’s grant of Old National’s motion under
Rule 50(A) is affirmed. Furthermore, Purcell’s relationship with Old National as a subordinate
creditor did not give rise to a duty of care required to prove Purcell’s claims of negligence and
constructive fraud, and the trial court did not abuse its discretion by denying Old National’s
request for costs and attorney’s fees.

Sullivan, and Massa, JJ., concur

Rucker, J., dissents in part and concurs in result in part with separate opinion in which Dickson,
C.J., concurs.




                                                10
Rucker, Justice, concurring in result in part and dissenting in part.


          I respectfully dissent to Section I of the majority opinion. The majority affirms the trial
court’s grant of Old National’s motion for judgment on the evidence. But with respect to actual
fraud and tortious interference with contract it does so on grounds the trial court did not reach,
and more importantly conflicting inferences from the evidence before the jury precludes
judgment on the evidence for these two claims.


          This case proceeded to trial on four theories: negligence, constructive fraud, actual fraud,
and tortious interference with contract. After the close of plaintiff’s case-in-chief, Old National
filed a Motion for Judgment on the Evidence. Appellant’s App. at 159. Although the Motion
itself is not included in the record before us, arguing in favor of the Motion, Old National noted
plaintiff’s various claims and contended “there’s a complete absence of proof on a required
element to establish plaintiff’s claim.” Appellant’s App. at 159. After entertaining arguments of
counsel, the trial court granted Old National’s Motion on all claims on the sole ground that “the
bank had no duty to [Purcell].” Appellant’s App. at 168.


          On review the Court of Appeals agreed with the trial court that Old National owed no
duty to Purcell because, according to the court, Purcell was merely a subordinate creditor to Old
National. See Purcell v. Old Nat’l Bank, 953 N.E.2d 527, 531 (Ind. Ct. App. 2011). However
the court correctly pointed out that the question of duty was relevant only in the context of
Purcell’s negligence and constructive fraud claims. And since there was no duty both claims
fail. See id. at 531 n.1. The majority apparently endorses this aspect of the Court of Appeals
opinion. Slip op. at 9. However, the majority proceeds to address an issue the trial court did not
decide, namely: whether there was sufficient evidence to support Purcell’s two remaining
claims.


          I agree with the majority that in reviewing a challenge to a ruling on a motion for
judgment on the evidence our standard of review is the same as it is for the trial court. N. Ind.
Pub. Serv. Co.v. Sharp, 790 N.E.2d 462, 466-67 (Ind. 2003). Judgment on the evidence is proper
only “[w]here all or some of the issues . . . are not supported by sufficient evidence.” Ind. Trial
Rule 50(A). Here the majority goes to some length explaining the “means by which a trial court
may determine whether evidence is ‘sufficient’ to survive a motion for a judgment on the
evidence.” Slip op. at 5. The problem however is that in this case the trial court made no such
determination.


       It is true that in certain contexts an appellate court may affirm a trial court’s judgment on
theories other than those adopted by the trial court. See, e.g., Coleman v. State, 946 N.E.2d
1160, 1168 (Ind. 2011) (admission of evidence); Estate of Mintz v. Conn. Gen. Life Ins. Co., 905
N.E.2d 994, 999 (Ind. 2009) (grant of summary judgment); Kimberlin v. Delong, 637 N.E.2d
121, 128 (Ind. 1994) (amendment of pleadings); Runde v. Vigus Realty, Inc., 617 N.E.2d 572,
575 (Ind. Ct. App. 1993) (dismissal of complaint); Conway v. Evans, 549 N.E.2d 1092, 1094-95
(Ind. Ct. App. 1990) (refusal to instruct jury). And of course “where a trial court has made
special findings pursuant to a party’s request under Trial Rule 52(A), the reviewing court may
affirm the judgment on any legal theory supported by the findings.” Mitchell v. Mitchell, 695
N.E.2d 920, 923 (Ind. 1998). But neither of the foregoing circumstances is present here. Thus, it
appears to me that a review of the trial court’s grant of a motion for judgment on the evidence
should be confined to the law applied by the trial court, and this Court should evaluate only the
merits of claims reached by the trial court. See State v. Econ. Freedom Fund, 959 N.E.2d 794,
801 (Ind. 2011) (declining to affirm trial court judgment on alternate theory). Because lack of
duty – the only ground on which the trial court relied in granting Old National’s motion for
judgment on the evidence – has no bearing on Purcell’s actual fraud and tortious interference
claims, I would reverse the trial court’s judgment with respect to these claims and remand for
consideration by a jury.


       Further, I disagree with the majority’s conclusion that the record before us supports the
grant of a motion for judgment on the evidence with respect to Purcell’s actual fraud and tortious
interference claims. To sustain a judgment for defendant on the evidence, the evidence must be
without conflict and susceptible to but one inference in favor of the moving party; if there is any
inference or legitimate inference therefrom tending to support at least one of plaintiff’s
allegations, a directed verdict should not be entered. See Bonnes v. Feldner, 642 N.E.2d 217,
220 (Ind. 1994). Stated slightly differently, “If there is any probative evidence or reasonable

                                                2
inference to be drawn therefrom or if there is evidence which would allow reasonable people to
differ as to the result, judgment on the evidence is improper.” Wellington Green Homeowners’
Ass’n v. Parsons, 768 N.E.2d 923, 925-26 (Ind. Ct. App. 2002). Based on the conflicting
evidence before the jury in this case, reasonable people could (and in fact do) differ as to whether
Old National or its agent Howarth induced Stein to include the false income figure on the April
2003 balance sheet. As the Court of Appeals observed:

                [T]here are questions of fact whether [Old National] intentionally
                induced MWF to breach the contract with Purcell by falsifying
                accounting figures in order to prevent Purcell from redeeming his
                interest in MWF, and whether [Old National] had a justification for
                its alleged actions. Because there was evidence [Old National]’s
                representative Howarth told Stein to falsify the accounting figures
                for April 2003, judgment on the evidence was improper.

Purcell, 953 N.E.2d at 532.        I agree.   The evidence in favor of Purcell’s claims is not
overwhelming. But there are competing inferences to be drawn from the evidence properly
presented to the jury. And it is certainly enough to withstand a motion for judgment on the
evidence. On the question of actual fraud and tortious interference with contract this case should
be remanded for trial. I therefore dissent to Section I of the majority opinion. With respect to
Sections II and III, I concur in result.

Dickson, C.J., concurs.




                                                 3
