                                                                        FILED
                                                                    Jul 16 2020, 9:05 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Gregg S. Gordon                                             Casey D. Cloyd
Indianapolis, Indiana                                       Indianapolis, Indiana

James A. Nickloy
Noblesville, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

Lee Johnson,                                                July 16, 2020
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            19A-PL-2866
        v.                                                  Appeal from the Hamilton
                                                            Superior Court
                                                            The Honorable David K. Najjar,
Hassan Shanehsaz,                                           Judge
Appellee-Defendant.                                         Trial Court Cause No.
                                                            29D05-1703-PL-2890



Altice, Judge.




Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020                           Page 1 of 26
                                               Case Summary

[1]   Lee Johnson appeals the trial court’s grant of summary judgment in favor of

      Hassan Shanehsaz, claiming that a general release that was executed in an

      action for unpaid wages did not release her instant claim against Shanehsaz for

      defamation. Johnson further contends that the trial court’s award of attorneys’

      fees to Shanehsaz must be reversed because much of those fees were unrelated

      to the instant litigation. Shanehsaz cross appeals, claiming that the trial court

      erred in denying his request for lost profits from a failed business venture that

      Johnson had allegedly caused.


[2]   We affirm in part, reverse in part, and remand with instructions that the trial

      court reduce the judgment for attorneys’ fees by the amount that Shanehsaz

      incurred for matters wholly unrelated to this cause.


                                   Facts and Procedural History

[3]   Johnson worked for Shanehsaz, the sole owner of the Hamilton County

      Convention Center, LLC (Convention Center), in 2010-11. Johnson solicited

      customers who were interested in renting space for various events in exchange

      for commissions from Shanehsaz. At some point, Johnson claimed that

      Shanehsaz had failed to pay her more than $10,000 in wages that were owed.

      Johnson resigned and filed suit against the Convention Center, Shanehsaz, and

      three other entities that Shanehsaz owned for the unpaid wages.




      Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020         Page 2 of 26
[4]   The matter proceeded to trial on November 1, 2013, and judgment was

      subsequently entered for Johnson in the amount of $15,408.60 in actual

      damages, $30,817.20 in liquidated damages, and $25,000 in attorneys’ fees.

      This court affirmed the judgment in an unpublished memorandum decision on

      August 18, 2016. Hamilton Cty. Convention Ctr., LLC v. Johnson, No. 29A05-

      1509-PL-1525 (Ind. Ct. App. Aug. 18, 2016).


[5]   While the unpaid wage action was pending, Shanehsaz’s brother, Ali, filed suit

      against Johnson in Federal Court on April 28, 2016, alleging that Johnson had

      stolen several Iranian notes that he had entrusted to Shanehsaz. Ali alleged

      that Johnson had stolen the notes when she left the Convention Center

      premises in November 2011, but that Shanehsaz had not learned that the notes

      were missing until April 2015.


[6]   Following our affirmance of the trial court’s judgment in the unpaid wage

      action, Johnson, Shanehsaz, and the other parties to that action entered into a

      settlement agreement (Agreement) on August 22, 2016, that provides in

      relevant part:


              6. The Parties do each hereby forever release and discharge the
              other, and their respective spouses, affiliates, successors, agents,
              employees, officers, directors, members, representatives,
              attorneys and assigns and all other persons, firms or corporations
              (including, without limitation, any parent, subsidiary or affiliated
              companies, and their respective officers, directors, employees,
              members and shareholders), none of whom admit any liability
              and all of whom dispute any liability, from any and all manner of
              actions, causes of action, suits, accounts, contracts, debts, claims
              and demands whatsoever, at law or in equity, arising out of
      Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 3 of 26
                claims that that were asserted, or could have been asserted in the
                Lawsuit by any of the Parties. The Parties acknowledge and
                agree that the execution and performance of this Settlement
                Agreement containing this mutual release and the stipulation of
                dismissal are made to compromise a disputed claim, and for the
                purpose of terminating dispute and litigation between the Parties
                and to avoid the costs, expenses and uncertainties of litigation.
                This Settlement Agreement and mutual release is not intended to
                and does not constitute an admission of liability. But, this release
                shall have no effect upon conduct in connection with or based
                upon a federal lawsuit known as Shanehsaz v. Johnson, currently
                pending in the U.S. District Court for the Southern District of
                Indiana. . . (hereinafter the “Federal Lawsuit”).[ 1]


      Appellant’s Appendix Vol. II at 59 (emphases added).

[7]   Pursuant to the terms of the Agreement, Shanehsaz paid Johnson $50,000 plus

      the balance on a secured promissory note, and attorneys’ fees and costs.

      Paragraph twelve of the Agreement allows for the recovery of attorneys’ fees by

      a prevailing party in litigation arising from its enforcement.


[8]   During the time that Shanehsaz was paying the amounts due under the

      Agreement, he engaged in discussions with Jacquie Bols about starting a new

      restaurant venture. Shanehsaz’s businesses had used Jacquie’s Café & Gourmet

      Catering, a local catering firm, to provide food and beverages at various

      functions that Shanehsaz’s businesses had staged. These events were held at




      1
          Ali’s federal claim was dismissed on April 13, 2017.


      Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020            Page 4 of 26
       one of Shanehsaz’s banquet facilities in downtown Noblesville. Bols and

       Shanehsaz agreed that they would share the profits from the restaurant equally.


[9]    Over the next few years, Bols conducted demographic studies in Hamilton

       County about the prospect of opening a new restaurant. Shanehsaz and Bols

       also toured one of the local restaurants to learn the layout of the kitchen and its

       operating procedures. Shanehsaz claimed that he had commissioned plans with

       an architect, engineer, and designer for redeveloping space in the facility for the

       new restaurant. The plan for the restaurant included revenue and profit

       forecasts. Bols predicted that the restaurant, which was designed to seat 400

       patrons, would normally operate at a 60% capacity. She anticipated that the

       restaurant would gross $3 million to $4 million annually, and generate net

       profits from $600,000 to $800,000 per year.


[10]   On March 24, 2017, Johnson filed a complaint against Shanehsaz, alleging

       defamation and intentional infliction of emotional distress for being wrongfully

       accused of stealing the aforementioned Iranian notes. Johnson claimed that

       Shanehsaz’s communication to Ali and statements made to law enforcement

       officials in April of 2015 accusing her of theft were defamatory per se.

       Shanehsaz denied the allegations and defended the action on the grounds that

       the Agreement “was a release of all of [Johnson’s] claims against [him],

       including all of those asserted in her Complaint.” Appendix Vol. II at 50.

       Shanehsaz also asserted a counterclaim against Johnson and sought damages,

       costs, and attorneys’ fees for breaching the Agreement in bringing the

       defamation action against him. Shanehsaz alleged that he suffered damages

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 5 of 26
       from the publication of “sensitive information related to terms of the parties’

       settlement the parties had expressly agreed were confidential.” Appellant’s

       Appendix at 22. Shanehsaz’s request for damages included an amount for lost

       profits from the restaurant venture with Bols that ultimately collapsed.


[11]   The evidence showed that Bols was aware of the current defamation litigation

       between Shanehsaz and Johnson, and she knew that the parties had settled the

       unpaid wage litigation. Bols became concerned about the effect that the current

       defamation litigation would have on the restaurant venture. Bols eventually

       terminated any future planning on the project because she feared that she might

       be brought into the present litigation.


[12]   On October 20, 2017, Johnson filed a motion for summary judgment, asserting

       that she was entitled to judgment as a matter of law because the Agreement did

       not release her defamation claim against Shanehsaz and she did not breach the

       Agreement by pursuing that action. More specifically, Johnson alleged that

       only the claims that were asserted or that could have been asserted in the

       unpaid wage lawsuit were released.


[13]   Shanehsaz responded that the Agreement was unambiguous and barred

       Johnson’s defamation claims. Hence, Shanehsaz maintained that summary

       judgment should be entered in his favor, including costs and attorneys’ fees

       because Johnson breached the Agreement by pursuing the barred claim.

       Shanehsaz argued in the alternative that there was a genuine issue of material

       fact that precluded summary judgment for Johnson.


       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 6 of 26
[14]   Following a hearing, the trial court entered summary judgment for Shanehsaz,

       concluding that “the Settlement Agreement in the prior lawsuit is clear and

       unambiguous in its terms,” and the claims that Johnson brought in the

       defamation action were barred. Appellant’s Appendix at 22. The trial court also

       determined that there was no issue of material fact regarding Shanehsaz’s

       counterclaim and entered judgment in his favor.



[15]   The matter proceeded to a damages hearing on October 3, 2019, where the trial

       court found that Shanehsaz had expended $27,981 in attorneys’ fees throughout

       the litigation for Johnson’s breach of the Agreement and pursuing his

       counterclaim. A portion of that sum—$2,340—was incurred as a result of

       Shanehsaz’s involvement as a deponent and as a prospective litigant in Ali’s

       federal claim against Johnson. Other amounts related to his summary

       judgment response and discovery matters. The uncontested evidence showed,

       however, that approximately 1.8 hours of counsel’s time that was billed to

       Shanehsaz was incurred for matters not related to the instant litigation,

       including mortgage payments and securing funds owed under the Agreement.


[16]   The trial court awarded Shanehsaz $27,981 in attorneys’ fees, but it declined

       Shanehsaz’s request for damages for alleged lost profits from the failed

       restaurant venture with Bols. Johnson now appeals, and Shanehsaz cross-

       appeals, claiming that the trial court erred in denying his request for damages

       from the collapsed restaurant venture.


                      I. Standard of Review—Summary Judgment
       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020           Page 7 of 26
[17]   When reviewing the grant or denial of a motion for summary judgment, our

       standard of review is the same as it is for the trial court. Reed v. Reid, 980

       N.E.2d 277, 285 (Ind. 2012). The moving party bears the initial burden of

       making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Gill v. Evansville Sheet

       Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). A fact is material if its

       resolution would affect the outcome of the case, and an issue is genuine “if a

       trier of fact is required to resolve the parties’ differing accounts of the truth, or if

       the undisputed material facts support conflicting reasonable inferences.”

       Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).


[18]   Summary judgment is improper if the movant fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. In determining

       whether summary judgment is proper, we consider only the evidentiary matter

       the parties have specifically designated to the trial court. See Ind. Trial R. 56(C),

       (H). We construe all factual inferences in the non-moving party’s favor and

       resolve all doubts as to the existence of a material issue against the moving

       party. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The fact that the

       parties have filed cross-motions for summary judgment does not alter our

       standard of review, as we consider each motion separately to determine

       whether the moving party is entitled to judgment as a matter of law. Hardy v.

       Hardy, 963 N.E.2d 470, 473 (Ind. 2012).


                                          II. Johnson’s Claims
       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020             Page 8 of 26
                                              A. The Agreement

[19]   Johnson argues that the trial court erred in determining that the Agreement

       barred her claim for defamation and intentional infliction of emotional distress

       against Shanehsaz as a matter of law. Johnson asserts that although the

       Agreement provided for a general release of claims that were or could have

       been asserted in the unpaid wage action, it nonetheless “preserved certain

       claims that would otherwise be subject to the general release.” Appellant’s Brief

       at 7. Johnson argues that the trial court improperly “re-wrote the parties’

       contract” that effectively rendered a portion of the Agreement meaningless. Id.


[20]   We initially observe that the interpretation and construction of contract

       provisions are questions of law and are reviewed de novo. Panther Brands, LLC v.

       Indy Racing League, LLC, 126 N.E.3d 898, 904 (Ind. Ct. App. 2019), trans.

       denied. The goal of contract interpretation is to determine the parties’ intent

       when they made a contract. Celadon Trucking 81205., Inc. v. Wilmoth, 70 N.E.3d

       833, 839 (Ind. Ct. App. 2017), trans. denied. This court must examine “the plain

       language of the contract, read it in context and, whenever possible, construe it

       so as to render every word, phrase, and term meaningful, unambiguous, and

       harmonious with the whole.” Id. It is presumed that all provisions were

       included for a purpose and when a contract contains general and specific

       provisions relating to the same subject, the specific provision controls. Ryan v.

       Lawyers Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. Ct. App. 2011). Settlement

       agreements and releases are contracts and are subject to the same rules of


       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020         Page 9 of 26
       interpretation. Dulworth v. Bermudez, 97 N.E.3d 272, 278 (Ind. Ct. App. 2018);

       State v. Booher, 935 N.E.2d 274, 278 (Ind. Ct. App. 2010). Finally, we note that

       construction of a written contract is generally a question of law for which

       summary judgment is particularly appropriate. Kordick v. Merchants Nat’l Bank

       & Trust Co., 496 N.E.2d 119, 125 (Ind. Ct. App. 1986).


[21]   In this case, the designated evidence established that Shanehsaz’s alleged

       defamatory statements that he made to Ali and local law enforcement officials

       about Johnson occurred sometime in April 2015. Ali initiated his federal action

       nearly a year later, and the parties executed the Agreement on August 22, 2016.


[22]   When Johnson executed the Agreement, she was aware of the facts that might

       have supported the defamation and emotional distress claims against

       Shanehsaz. Hence, she could have added those counts against Shanehsaz when

       she amended her complaint or at other times before the Agreement was

       executed. Moreover, had Johnson desired to preserve those claims in the

       Agreement, she could have expressly done so.


[23]   Also, while Johnson urges that the last sentence in paragraph six of the

       Agreement quoted above, i.e., that the release “has no effect upon conduct in

       connection with or based upon [the] federal lawsuit,” did not bar the

       defamation and emotional distress claims, there is no evidence establishing that

       the alleged defamatory statement amounted to “conduct” in the 2016 federal

       action. That lawsuit did not even exist when the alleged defamation occurred.




       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020       Page 10 of 26
[24]   Additionally, while Johnson asserts that the words in the Agreement stating,

       “in connection with or based upon a federal lawsuit,” must be read to

       encompass acts or omissions prior to the initiation of the federal suit, that

       interpretation effectively destroys the language pertaining to the release of

       claims. Rather, a harmonious reading of the Agreement is that both the “in

       connection with” or “based upon” phrases set forth in the Agreement

       anticipates the existence of the federal litigation that is referenced. Construing

       those phrases in the abstract to preserve claims such as Shanehsaz’s alleged

       defamatory statements that he made prior to the commencement of the federal

       litigation would simply not afford those words their plain, ordinary meanings

       when read in context with the federal action. That said, we agree with the trial

       court that the unambiguous language of the Agreement served as a general

       release of claims by Johnson and Shanehsaz against one another. In other

       words, the Agreement reserved only those claims that arose after the federal

       action commenced in 2016. Therefore, the claims that were released under the

       Agreement included the 2015 defamation and emotional distress allegations

       against Shanehsaz. As a result, we conclude that the trial court properly

       entered summary judgment for Shanehsaz. 2




       2
         Although the dissent maintains that it is without dispute that the alleged defamatory statements constituted
       conduct in connection with the federal lawsuit, we must conclude that the “in connection with or based
       upon” the federal lawsuit language in the Agreement cannot be read to encompass acts or omissions prior to
       the commencement of the federal litigation. The harmonious reading of the Agreement is that the language
       therein contemplates the existence of the referenced federal lawsuit. Put another way, to read those phrases
       independently to include the alleged 2015 defamation would not give those words their plain and ordinary
       meanings in their connection to the federal litigation.


       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020                                Page 11 of 26
                                              B. Attorneys’ Fees

[25]   Johnson claims that the trial court erred in awarding $27,981 in attorneys’ fees

       to Shanehsaz because the amount included nearly forty hours allegedly billed

       for items such as unnecessary discovery and Shanehsaz’s unsuccessful claim for

       lost profits from the failed business venture. Thus, Johnson contends that the

       judgment for attorneys’ fees must be vacated.


[26]   Because the trial court entered findings of fact and conclusions of law following

       the damages hearing, we apply a two-tiered standard of review:


               [W]e first determine whether the evidence supports the findings;
               we then determine whether the findings support the judgment.
               In deference to the trial court’s proximity to the issues, we disturb
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. We do not
               reweigh the evidence, and we consider only the evidence
               favorable to the trial court’s judgment. We also will not reassess
               witness credibility. The party appealing the trial court’s
               judgment must establish that the findings are clearly erroneous.
               Findings are clearly erroneous when a review of the record leaves
               us firmly convinced that a mistake has been made. We do not
               defer to conclusions of law, which are evaluated de novo.




       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 12 of 26
       New Nello Operating Co. v. LLC CompressAir, 142 N.E.3d 508, 511-12 (Ind. Ct.

       App. 2020)(quoting Koch Dev. Corp. v. Koch, 996 N.E.2d 358, 369 (Ind. Ct. App.

       2013), trans. denied (citations and internal quotation marks omitted)).


[27]   In this case, the trial court entered the following findings and conclusions that

       pertained to the attorneys’ fee award:


               33. Shanehsaz incurred attorneys’ fees in fighting Johnson’s
               attempt to make him a party in Shanehsaz’ brother’s federal
               litigation against Johnson, which attempt Johnson eventually
               abandoned.


               34. Shanehsaz incurred $25,581.00 in billed, paid attorneys’ fees
               in the federal litigation and more significantly defending
               Johnson’s defamation claim in this litigation and prosecuting his
               counterclaim against her for breach of the parties’ settlement
               agreement. Shanehsaz offered his Exhibit C, which were
               redacted copies of time records from Shanehsaz’s attorneys.
               Upon Shanehsaz offering to submit unredacted copies to
               Johnson’s attorneys, the objection was withdrawn, with the
               understanding that Johnson could offer further objections in her
               post-trial brief, if she believed certain time entries were improper.


               35. Shanehsaz’s attorney Casey D. Cloyd incurred trial
               preparation fees not yet billed to Shanehsaz at the time of trial of
               $2,400.00.


               36. In her Post-Trial Brief, Johnson objected to Shanehsaz’s
               attorney fees for time incurred as to the federal lawsuit between
               Johnson and Shanehsaz’s brother, Shanehsaz’s own performance
               under the settlement agreement, discovery between the parties as
               to the meaning of terms and conditions of the agreement, and



       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 13 of 26
        Shanehsaz’s claims for lost profits as to the restaurant venture he
        planned with Bols.


        37. Shanehsaz argues that the time spent by his attorneys
        working on the federal lawsuit were for the same reasons
        Shanehsaz defended this lawsuit and as such, those fees are
        properly included here. He also argued that his fees for engaging
        in discovery as to the meaning of terms and conditions of the
        agreement were reasonable as it was directed to the summary
        judgment motion in this case. Finally, he argues that his fees in
        pursuing his damages claim is reasonable and should be
        included.


        38. The Court, having reviewed [the exhibits] and the post-trial
        briefs of both parties, finds that the fees claimed by Shanehsaz
        are reasonable and appropriate in defending this lawsuit,
        defending against Johnson’s breach of the Settlement Agreement,
        and in pursuing his claims for damages.


        39. The attorneys’ fees Shanehsaz incurred from [his attorneys]
        were reasonable as to hourly rate for attorneys of their experience
        and skill in Central Indiana and the aggregate amount of such
        fees is reasonable for the nature of this litigation and for the
        results obtained.


                                                   ...


                                        Conclusions of Law


        2. As previously decided, Johnson breached the parties’ 2016
        settlement agreement by bringing her defamation action.


        3. Shanehsaz incurred damages from Johnson’s breach, in the
        form of the attorney fees and costs related to his defense of

Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020        Page 14 of 26
               litigation in this case and in a federal lawsuit involving Johnson
               and Shanehsaz’s brother. . . .


               4. The harm that Shanehsaz suffered, by being subjected to a
               barred claim, is the kind of harm that was reasonably foreseeable
               when the parties negotiated their 2016 settlement agreement
               which included a broad general release of all then-existing
               claims, one of which was Johnson’s defamation claim.


               6. Shanehsaz incurred attorneys’ fees to defend himself from
               Johnson’s claim barred by the settlement agreement, which
               started with her attempt to join him into the unrelated federal
               litigation, but which were principally incurred by defending and
               prosecuting this litigation. . . . The Court finds that the claimed
               fees are legitimate expenses necessary to defend this action as
               well as protect Shanehsaz’s rights from Johnson’s breach of the
               settlement agreement.


               7. The attorneys’ fees Shanehsaz incurred, $27,981.00, are a
               reasonable amount of attorneys’ fees given the skill of
               Shanehsaz’s lawyers, those lawyers’ experience, the prevailing
               rates for such litigation work here in Central Indiana and the
               complexity of the matter.


       Appellant’s Appendix at 30-32.


[28]   Indiana trial courts have broad discretion in assessing attorney fees. Husainy v.

       Granite Management, LLC, 132 N.E.3d 486, 497 (Ind. Ct. App. 2019). An award

       of attorney fees, even pursuant to a contract, must be reasonable. Stewart v. TT

       Commercial One, LLC, 911 N.E.2d 51, 58 (Ind. Ct. App. 2009), trans. denied. If

       there is a basis for an award of attorneys’ fees, that award by the trial court is

       reviewed for an abuse of discretion. Patricia Ann Brown, C.P.A. v. Brown, 776

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020            Page 15 of 26
       N.E.2d 394, 397 (Ind. Ct. App. 2002), trans. denied. Reversal of a trial court’s

       award of attorneys’ fees is warranted “if the award is clearly against the logic

       and effect of the facts and circumstances before the court.” Benaugh v. Garner,

       876 N.E.2d 344, 347 (Ind. Ct. App. 2007), trans. denied. We also note that when

       a lawsuit consists of related claims, a plaintiff who has won substantial relief

       should not have his attorneys’ fee reduced simply because the court did not

       adopt each contention raised. Barker v. City of W. Lafayette, 894 N.E.2d 1004,

       1010 (Ind. Ct. App. 2008), trans. denied.


[29]   In this case, Paragraph 12 of the Agreement provides that


               12. In the event of a dispute concerning a perceived violation of
               the rights or responsibilities of a party to this agreement which
               results in a lawsuit, the prevailing party in such a lawsuit shall be
               entitled to recover from the party failing to fully perform
               thereunder all costs, expenses and reasonable attorney fees
               incurred by such prevailing party.


       Appellant’s Appendix Vol. II at 61.


[30]   Shanehsaz’s billing statements set forth the time that was billed, and Johnson’s

       counsel does not contest the reasonableness of the charges with respect to the

       hourly rate, skills, and experience of the attorneys. Rather, Johnson challenges

       the amount of time that Shanehsaz’s attorneys incurred in the instant litigation

       and the results that were ultimately obtained.


[31]   Johnson contends that the trial court erred in awarding Shanehsaz $2,430 in

       attorneys’ fees because those amounts were incurred prior to the

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 16 of 26
       commencement of the instant litigation. Shanehsaz’s counsel testified that he

       became aware in late 2016 that Johnson was attempting to join Shanehsaz in

       Ali’s federal court litigation against Johnson. Hence, counsel attended

       Shanehsaz’s December 2016 deposition in that case, and he assisted in the

       response to join Shanehsaz as a party. 3


[32]   The fees that Shanehsaz incurred in Ali’s federal case were for substantially the

       same reason he defended Johnson’s defamation claim. Johnson had released

       Shanehsaz for claims that preceded the Agreement and targeting Shanehsaz in

       the federal case would be a breach of the Agreement. Hence, Shanehsaz was

       entitled to compensation from Johnson for the expenses that he incurred in that

       action. As a result, the trial court did not err in awarding Shanehsaz $2430 in

       attorneys’ fees for that breach.


[33]   Johnson also appears to contend that any attorneys’ fees that Shanehsaz

       incurred regarding Johnson’s breach of the Agreement that did not directly

       support the trial court’s judgment were not recoverable. To be sure, Shanehsaz

       presented his argument in the alternative: either the Agreement barred

       Johnson’s defamation claim as a matter of law, or the designated evidence

       demonstrated that there was a genuine issue of material fact. Even though the

       trial court determined that the Agreement was unambiguous and granted his




       3
[1]       After the brief opposing the joinder of Shanehsaz was filed, Johnson withdrew her motion and the federal
       litigation was ultimately dismissed.




       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020                              Page 17 of 26
       motion for summary judgment on this basis, it does not follow that Shanehsaz

       should not be compensated for his attorneys’ fees because he allegedly failed to

       properly raise a genuine issue of material fact. Such a narrow interpretation

       suggests that Shanehsaz wasted his money on attorneys’ fees that were not

       directly related to the trial court’s precise reasons for entering judgment in his

       favor. He did not.


[34]   Shanehsaz successfully defended against Johnson’s defamation claim and he

       prevailed on his counterclaim. Therefore, he is entitled to recover attorneys’

       fees incurred with respect to the alternate theories that he presented to the trial

       court. See, e.g., Gerstbauer v. Styers, 898 N.E.2d 369, 380 (Ind. Ct. App. 2008)

       (holding that because the appellant was successful both in his defense against

       the action and on his counter-claim, he was the “prevailing party . . . and

       entitled to attorneys’ fees incurred both in his defense and on his counter-

       claim”).


[35]   Finally, we note that Shaneshaz’s counsel acknowledged at the damages

       hearing that some of the entries in the billing statements were not related to

       time spent in the instant litigation. Shanehsaz’s counsel explained that several

       of the entries related to fees regarding mortgage payments and securing funds in

       accordance with the Agreement. Those unrelated entries accounted for 1.8

       hours of the 107.7 total hours that Shanehsaz’s counsel had billed. Hence, on

       remand, the trial court is directed to correct the judgment and reduce the

       attorneys’ fee award by the amount that Shanehsaz paid counsel for 1.8 hours

       of time spent on matters that were unrelated to the instant litigation.

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020         Page 18 of 26
[36]   In sum, but for the 1.8 hours in attorneys’ fees that Shanehsaz incurred on

       matters wholly unrelated to the instant action, the record supports the trial

       court’s award of attorneys’ fees. To hold otherwise would require us to reweigh

       the evidence, which we will not do.


                                   III. Shanesaz’s Cross Appeal
[37]   Shanehsaz argues that the trial court abused its discretion in denying his claim

       for damages that represented lost profits from the failed restaurant venture that

       was allegedly caused by Johnson’s breach of the Agreement. Shanehsaz argues

       that he presented sufficient evidence at the damages hearing to support such an

       award.


[38]   We initially observe that because it was Shanehsaz’s burden to prove his

       damages for Johnson’s breach of contract, he is appealing a negative judgment.

       A party challenging a negative judgment generally must show on appeal that

       the evidence as a whole leads to a decision opposite that reached by the trial

       court. Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d

       597, 601 (Ind. 2019). Hence, we may reverse only when the evidence is

       uncontradicted and leads unerringly to a result different than the trial court

       reached. Walters v. Dean, 497 N.E.2d 247, 255n.2 (Ind. Ct. App.1986).


[39]   The computation of damages for breach of contract is within the sound

       discretion of the trial court, and we will review a damage award for an abuse of

       discretion. City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1015

       (Ind. Ct. App. 2011), trans. denied. A damage award in a breach of contract

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020         Page 19 of 26
       action must reference some fairly-defined standard such as cost of repair,

       market value, and loss of profits. Otter Creek Trading Co., Inc. v. PCM Enviro

       PTY, Ltd., 60 N.E.3d 217, 229 (Ind. Ct. App. 2016), trans. denied. A loss of net

       profits may be recovered as consequential damages, providing the amount can

       be estimated with a relative degree of certainty and exactness. Berkel & Co.

       Contractors, Inc. v. Palm & Assocs., 814 N.E.2d 649, 659 (Ind. Ct. App. 2004).

       The factfinder may not award damages on the mere basis of conjecture or

       speculation. L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043

       (Ind. Ct. App. 2012); Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.

       Ct. App. 2002).


[40]   In this case, the trial court entered the following findings of fact and conclusions

       of law in denying Shanehsaz’s request for damages relating to the alleged lost

       profits:


               22. Bols and Shanehsaz testified that they continued their
               planning for the opening of [the restaurant] between 2013 and
               2016. Bols testified that the plans for the restaurant did not
               progress beyond the discussion stage, at least on her part.
               Shanehsaz testified that he commissioned plans for turning a part
               of the Model Mill Building into a restaurant and worked with
               and paid architects, engineers and kitchen design engineers to
               submit plans to the State of Indiana for permits. No documents
               were submitted into evidence showing these plans or permits, nor
               was any evidence presented as to payments made to architects,
               engineers, or kitchen design engineers.


               23. After Bols acquired another restaurant in 2016, which
               included a small vineyard and farm, Bols and Shanehsaz


       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020        Page 20 of 26
        revamped the Model Mill Building venture to offer a “farm to
        table” experience as part of the restaurant offering.


        24. Although Bols has extensive experience in restaurants and the
        foodservice industry, she does not currently work in a large,
        upscale steak restaurant as was proposed with Shanehsaz.


        25. Although Shanehsaz has helped to finance two local
        restaurant ventures, he does not have much experience in the
        food service industry.


        26. The City of Noblesville does not currently have any
        restaurants close to the capacity proposed by Shanehsaz and
        Bols. The city of Noblesville does not currently have any upscale
        steak restaurants. Bols testified that the restaurant would be
        similar to a Ruth’s Chris Steakhouse, which the court notes is an
        upscale chain steak restaurant with locations across the United
        States.


        27. Bols, whose catering business with Shanehsaz’s company
        began during Johnson’s tenure in 2010-2011, was aware of
        Johnson’s wage claim litigation against Shanehsaz and his
        related businesses and of the August, 2016 settlement agreement
        with Johnson settling her claims.


        28. Shanehsaz settled Johnson’s wage claim case so that he could
        proceed with the new venture with Bols as soon as possible.


        29. Bols learned from Shanehsaz in March or April, 2017 that
        Johnson had initiated this litigation.


        30. Bols had insecurity about proceeding with the . . . restaurant
        while this litigation with Lee Johnson was pending.


Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020        Page 21 of 26
               31. Bols subsequently told Shanehsaz that she did not want to go
               forward with finishing the . . . restaurant venture, citing to him
               her insecurity about their restaurant venture being dragged into
               Johnson’s litigation against Shanehsaz similar to what happened
               in the wage claim litigation.


                                                          ...


                                              Conclusions of Law


               5. Although Bols’ testimony about . . . the lost net profits of her
               venture with Shanehsaz, based on her years as a restauranteur
               and caterer, was not countered by other, different testimony
               about the potential success or failure of such a venture, the Court
               finds that the evidence submitted by Bols and Shanehsaz as to the
               potential profits of their restaurant is speculation and conjecture
               and, without more, does not prove with reasonable certainty the
               claimed damages. See Noble Roman’s Inc. v. Ward, 760 N.E.2d
               1132 (Ind. Ct. App. 2002).


       Appellant’s Appendix at 28-30, 32-33.


[41]   Shanehsaz’s argument on appeal is premised upon the notion that because he

       presented uncontradicted testimony at the hearing, the trial court was obligated

       to award him the amount claimed for lost profits. Shanehsaz’s argument,

       however, ignores what evidence was not offered at the hearing, including

       documents and/or expert testimony establishing that a restaurant of this nature

       was even feasible for its proposed location and whether it would be profitable.


[42]   As the trial court observed, no documentary evidence such as architectural

       plans and designs were offered into evidence and there was no showing that

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020        Page 22 of 26
       building permits had been applied for or issued. Bols testified that nothing

       more than discussions about the venture had occurred, no agreement had been

       reduced to a writing, and virtually no out-of-pocket expenditures had been

       made towards establishing the business. And while Bols was experienced in the

       food industry, she was not working in a large upscale restaurant when she and

       Shanehsaz were discussing plans about the venture. Moreover, Shanehsaz had

       very little experience in the food industry.


[43]   We reject Shanehsaz’s claim that the trial court “ignore[d] . . . competent,

       uncontroverted evidence” when considering his request for damages. Cross-

       Appellant’s Reply Brief at 8. Rather, it is apparent that the trial court considered

       all of the evidence that was offered as set forth in its detailed findings, and it

       noted that the type of evidence that it deemed necessary to prove damages was

       lacking. We decline to reweigh the evidence, and we cannot say that the

       evidence as a whole leads to a decision opposite that reached by the trial court.

       Thus, the trial court did not abuse its discretion in denying Shanehsaz’s request

       for damages that related to possible lost profits from the failed restaurant

       venture.


                                               III. Conclusion

[44]   In light of our discussion above, we conclude that the trial court properly

       construed the Agreement and entered summary judgment for Shanehsaz. We

       also conclude that the evidence supported the award of attorneys’ fees for

       Shaneshaz, but for the 1.8 hours of time that was billed for matters wholly

       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020          Page 23 of 26
       unrelated to the instant litigation. Finally, we cannot say that the trial court

       abused its discretion in denying Shanehsaz’s request for possible lost profits

       from the failed business venture.


[45]   Affirmed in part, reversed in part, and remanded with instructions that the trial

       court correct the judgment and reduce the attorneys’ fee award by the amount

       that Sanchez incurred for matters wholly unrelated to this cause.


       Bailey, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020         Page 24 of 26
                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Lee Johnson,                                                Court of Appeals Case No.
                                                                  19A-PL-2866
      Appellant-Plaintiff,

              v.


      Hassan Shanehsaz,
      Appellee-Defendant.



      Crone, Judge, dissenting.


[1]   I respectfully dissent. As the majority acknowledges, “when a contract contains

      general and specific provisions relating to the same subject, the specific

      provision controls.” Slip op. at 9 (citing Ryan, 959 N.E.2d at 875). And,

      “whenever possible,” we construe a contract “so as to render every word,

      phrase, and term meaningful, unambiguous, and harmonious with the whole.”

      Id. (quoting Celadon Trucking, 70 N.E.3d at 839).


[2]   Paragraph six of the Agreement contains a general provision that mutually

      releases Johnson and Shanehsaz “from any and all manner of actions … arising

      out of claims that were asserted, or could have been asserted in [Johnson’s

      unpaid wage lawsuit against Shanehsaz] by any of the Parties.” Appellant’s

      App. Vol. 2 at 59. But it also specifically provides that the release “shall have

      no effect upon conduct in connection with or based upon” Ali’s federal lawsuit

      Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020                       Page 25 of 26
against Johnson for allegedly stealing Iranian promissory notes, which was

pending when the Agreement was signed. Id. In my view, it cannot reasonably

be disputed that Shanehsaz’s allegedly defamatory statements to Ali regarding

Johnson’s alleged theft of the notes constitute “conduct in connection with” the

federal lawsuit. 4 Consequently, the Agreement’s general release provision does

not bar Johnson from bringing an action against Shanehsaz for defamation and

emotional distress based on that conduct. The majority’s contrary holding

allows the general release provision to trump the specific exception to that

provision and renders that exception meaningless. Based on my interpretation

of the Agreement, which harmonizes its provisions and renders every word and

phrase meaningful, I would reverse the trial court’s rulings in favor of

Shanehsaz and remand for further proceedings.




4
    In concluding otherwise, the majority reads “in connection with” out of the Agreement.


Court of Appeals of Indiana | Opinion 19A-PL-2866 | July 16, 2020                            Page 26 of 26
