MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Apr 13 2015, 10:10 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Scott E. Yahne                                            Larry G. Evans
Yahne Law, P.C.                                           Richard M. Davis
Munster, Indiana                                          Sean E. Kenyon
                                                          Hoeppner Wagner & Evans LLP
                                                          Merrillville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jack Weichman; Medical                                    April 13, 2015
Management and Data Services,                             Court of Appeals Case No.
Inc.; and Weichman and                                    45A03-1403-PL-81
Associates, P.C.,                                         Appeal from the Lake Superior
                                                          Court
Appellants-Defendants,
                                                          The Honorable William E. Davis,
        v.                                                Special Judge
                                                          Case No. 45D05-0710-PL-97
Domenico Lazzaro, M.D.;
Joseph Pabon, M.D.; and
Associated Pathologists of
Munster, Indiana, P.C.,
Appellees-Plaintiffs




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015              Page 1 of 34
                                           Case Summary
[1]   Appellees-Plaintiffs-Counterclaim Defendants Dr. Domenico Lazzaro, M.D.,

      and Dr. Joseph Pabon, M.D. operated Appellee-Plaintiff-Counterclaim

      Defendant Associated Pathologists of Munster, Indiana, P.C. (“the Practice”).

      Dr. Lazzaro became an individual client of Appellant-Defendant Weichman

      and Associates, P.C. (“Weichman & Associates”), in 1982, which was operated

      by Appellant-Defendant-Counterclaim Plaintiff Jack Weichman. Dr. Lazzaro

      and his wife Patricia remained individual clients of Weichman & Associates

      until 1999, investing in several Weichman-controlled ventures which resulted in

      losses to the Lazzaros of approximately $800,000.00. The Practice also

      invested $100,000.00 in a Weichman-controlled venture, which investment was

      also lost (Weichman-controlled entities collectively known as “Investment

      Entities”).


[2]   At some point, Weichman advised the Lazzaro’s to open an account with Blunt

      Ellis Loewi (“Blunt Ellis”). In 1987, Weichman began unauthorized options

      trading on the account after forging the Lazzaros’ signatures on certain

      documents, trading activity that resulted in losses of approximately $20,000.00

      to $22,000.00. Weichman also opened a Blunt Ellis account for the Practice,

      which was unknown to the Lazzaros. Ultimately, the Practice lost

      approximately $1,300,000.00 in the Blunt Ellis Account.


[3]   Meanwhile, in 1988, the Practice and Appellant-Defendant-Counterclaim

      Plaintiff Medical Management and Data Services, Inc. (“MMDS”), Inc., also


      Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 2 of 34
      controlled by Weichman, entered into a billing agreement with the Practice

      (“the Agreement”). Beginning around 1994, the Practice began experiencing

      problems related to MMDS’s failure to keep accurate records and adequately

      fulfill reporting requirements. Additionally, as a result of MMDS’s use of

      improper billing codes, the Practice was subjected to Medicare and Medicaid

      audits, resulting in approximately $41,000.00 in fines, interest, and penalties.

      In 1999, the Practice terminated the Agreement and switched billing

      companies. MMDS failed to transfer the Practice’s files to the new company in

      a timely fashion and, in the case of electronically-stored records, never

      transferred them at all.


[4]   In 1999, Drs. Lazzaro and Pabon and the Practice (collectively, “Plaintiffs”)

      sued Weichman, Weichman & Associates, and MMDS (collectively,

      “Defendants”) under various theories, including breach of contract, breach of

      fiduciary duty, and conversion. MMDS filed a counterclaim of breach of

      contract, and Weichman counterclaimed for defamation. Trial on the claims

      finally began in 2009. At trial, Defendants attempted to introduce documents

      purporting to undermine evidence that Dr. Lazzaro was ignorant regarding the

      Blunt Ellis accounts, evidence that the trial court did not allow Defendants to

      introduce on the basis that it had not been timely discovered to Plaintiffs. At

      the conclusion of trial, the trial court entered judgment in favor of the Practice

      for $110,000.00 and Dr. Lazzaro for $340,000.00 and denied MMDS’s and

      Weichman’s counterclaims.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 3 of 34
[5]   Defendants argue on appeal that the trial court erred in (I) not dismissing

      certain of the Plaintiffs’ claims for failure to join indispensable parties, (II)

      rejecting MMDS’s breach of contract claim, (III) entering judgment in favor of

      Dr. Lazzaro and the Practice on claims regarding the Blunt Ellis accounts, (IV)

      concluding that the Plaintiffs’ claims regarding the Blunt Ellis accounts were

      not time-barred, (V) awarding treble damages based on MMDS’s negligent

      handling of the Practice’s billing, and (VI) excluding the evidence of Blunt Ellis

      accounts proffered at trial. Because we conclude that the trial court erred in

      denying MMDS’s breach of contract claim against the Practice, we affirm in

      part, reverse in part, and remand with instructions.



                            Facts and Procedural History
[6]   Dr. Lazzaro and Patricia became clients of Weichman & Associates in 1982.

      The Lazzaros remained individual clients of Weichman & Associates until

      1999, and while they were clients, Weichman & Associates prepared individual

      tax returns and personal financial statements for them. Weichman &

      Associates also did the Practice’s accounting from approximately 1987 until

      1999. Weichman acted as business/management advisor to the Practice,

      essentially running it. From 1988 until 1999 neither Dr. Lazzaro nor Dr. Pabon

      ever received bank statements or general ledgers for the Practice. On May 1,

      1988, MMDS entered into the Agreement for billing services with the Practice,

      which was owned by Drs. Lazzaro and Pabon. MMDS provided billing

      services for the Practice into 1999.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 4 of 34
                     I. Investments Controlled by Weichman
[7]   As early as 1984, Weichman began advising the Lazzaros on personal financial

      matters and encouraged several investments, including Broadmoor; U.S. 30

      Building Partnership (“U.S. 30 Building”); U.S. 30 Restaurant, Inc. (“U.S. 30

      Restaurant”); Landings, Inc. (“Landings”); and Dunes Hotel Partnership

      (“Dunes Hotel”). Moreover, the Practice invested pension and retirement

      account funds totaling $100,000.00 in Broad Ridge Plaza Associates, Ltd.

      (“Broad Ridge”), another Weichman-controlled entity.


[8]   By 1989, the Lazzaros had been investing with Weichman for approximately

      five years but had yet to receive any sort of reports on their investments. In

      November of 1989, Weichman, upon request, produced a handwritten

      summary of the Investment Entities. Weichman’s summary listed the values of

      the investments as follows:


                         Investment                         Fair Market Value of the Investment


                        Broadmoor                                     $2,500,000-3,000,000


                       Dunes Motel                                           $1,500,000


                        Broad Ridge                                          $1,200,000


                   Gathering Building                                         $225,000




      Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015    Page 5 of 34
                   U.S. 30 Restaurant1                                         $500,000



      Ex. 4. The 1989 report was the only one received by the Lazzaros.


[9]   From 1986 to 1993, The Lazzaros invested in Broadmoor, which operated a

      golf course. Weichman provided information on Broadmoor to the Lazzaros

      on a “sporadic” basis and “was evasive most times [they] were trying to get

      information.” Tr. p. 106. In 1989, the Lazzaros invested in U.S. 30 Building,

      which was an investment in “land or buildings[,]”; U.S. 30 Restaurant, which

      involved the purchase of a restaurant named Phillipe’s, later renamed the

      Gathering; and Dunes Hotel, which invested in “The Spa in Chesterton,”

      which apparently involved a restaurant and hotel. Tr. p. 112. At around the

      same time, the Lazzaros invested in Landings, which operated a bar in

      Merrillville, Indiana. The Lazzaros invested a total of $505,000.00 in

      Broadmoor, $97,000.00 in U.S. 30 Building, $57,000.00 in U.S. 30 Restaurant,

      $98,500.00 in Dunes Hotel, and $35,000.00 in Landings. Ultimately, all of the

      money the Lazzaros invested in the Investment Entities, a total of

      approximately $793,000.00, was lost. Additionally, when Broad Ridge was

      finally sold in 2003, the Practice received no proceeds from the sale.




              1
                  It is unclear why the Gathering and U.S. Restaurant are listed separately on the investment
      summary, as U.S. Restaurant apparently owned the Gathering. As Patricia testified, “I’m not sure what the
      difference is there.” Tr. p. 139.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015           Page 6 of 34
                                 II. The Blunt Ellis Accounts
[10]   At some point, Weichman advised the Lazzaros to open an investment account

       with Blunt Ellis, in which the Lazzaros initially invested $40,000.00. On or

       about February 20, 1987, without the Lazzaros’ knowledge, Weichman forged

       their names to an application to allow options trading on the Blunt Ellis

       account. By the time the Lazzaros’ Blunt Ellis account was closed in 1989, the

       account had lost $20,000.00 to $22,000.00 dollars from options trading.


[11]   Also, Weichman unilaterally opened a Blunt Ellis account for the Practice,

       which the Lazzaros only discovered in 1999. Between January of 1987 and

       July of 1992, $1,437,000.00 was deposited in the Practice’s Blunt Ellis account

       while $1,387,000.00 was withdrawn, resulting in losses of approximately

       $1,300,000.00. The vast majority of the money withdrawn from the Practice’s

       Blunt Ellis account was taken out the day it was deposited or the day after.

       Among the transactions was a 1990 check from the Practice’s Blunt Ellis

       account to Broadmoor for $70,000.00. The payment was authorized by neither

       Dr. Lazzaro nor Dr. Pabon, and there does not seem to have been a legitimate

       business reason for the transfer, as the Practice never invested in Broadmoor.


                                                III. MMDS
[12]   As previously mentioned, the Practice entered into the Agreement with

       MMDS, an entity controlled by Weichman, in 1988. The Agreement provided,

       in part, as follows:




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 7 of 34
        THIS AGREEMENT FOR BILLING SERVICES (“the
        Agreement”) is entered into as this 1st day of May, 1988, between
        [MMDS] and [the Practice] (“Client”).
        ….
        Section 2. Services to be Provided by MMDS.
        (a) Billing Services. MMDS shall provide those billing services
        to Client as are provided for on the attached Schedule A, which
        is expressly made a part of this agreement.
        (b) Collection Services. MMDS will provide collection services
        for accounts unpaid up to 120 days following the billing date by
        sending one or more appropriate collection letters or follow-up
        statements with the content and scheduling of letters to be agreed
        upon by MMDS and Client. At the end of each month, MMDS
        shall furnish Client with a report showing all accounts on the
        books which have been unpaid for 120 or more days. Within
        fourteen (14) business days of the receipt of such report, Client
        will instruct MMDS with respect to each account, either:
        (i) To write off such account; or
        (ii) To commence such further collection efforts as shall be
        agreed upon by MMDS and Client; or
        (iii) To refer the unpaid account to a collection agency
        designated by the Client.
        ….
        Section 4. Fees for Services.
        ….
        (c) Books and Records. MMDS represents and warrants that it
        will maintain accurate books and records of its performance and
        the results of its billing and collection services on Client’s behalf.
        ….
        Section 6. Preservation of Property and Confidentiality.
        (a) Undertakings by MMDS. MMDS acknowledges and agrees
        that all data of Client delivered to and developed by MMDS is

Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 8 of 34
        and shall remain the sole and exclusive property of Client,
        subject to the restrictions of this Agreement and for the term of
        the Agreement. MMDS agrees that it will not take or permit any
        of its officers, directors, employees and agents to take any action
        that would have the effect of making an unauthorized disclosure
        to an person or entity, in whole or in part, of any proprietary or
        confidential information of Client, including without limitation,
        information relating to patients or to the business or professional
        practices of Client, which is in the possession of or made
        available to MMDS at any time after the date of execution of this
        Agreement. MMDS represents and warrants that, as a condition
        of employment or retention of MMDS, each of its employees and
        agents would be required to acknowledge the obligations
        contained in this Section 6(a).
        ….
        Section 8. Term of this Agreement. This Agreement shall be for
        a term of five (5) years, commencing May 1, 1988, and ending
        April 30, 1993, unless sooner terminated as provided for herein.
        At the end of the term of this Agreement, it shall be
        automatically renewed from year to year thereafter unless either
        party serves notice on the other party of its intent to terminate
        this Agreement not less than sixty (60) days prior to the last date
        of the original term or renewal term of this Agreement, as the
        case may be.
        Section 10. Termination.
        (a) Cause. This Agreement may be terminated as follows:
        ([i]) At the end of the initial term or of any renewal term of this
        Agreement, upon delivery of written notice by either party not
        less than sixty (60) days prior to the expiration date of any such
        initial renewal term; or
        (ii) As of the effective date, confirmed in writing by notice from
        Client to MMDS, of the termination, by non-extension or
        otherwise, of Client’s contract for the provision of professional
        services to The Community Hospital, Munster, Indiana (the


Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 9 of 34
               “Hospital”), for which services MMDS has been retained for
               provide billing services under this Agreement; or
               (iii) At any time upon the occurrence of an Event of Default, if
               the defaulting party is given both written notice of such default
               and period of not less than fifteen (15) days to cure or commence
               to cure such default, when appropriate. In the event of a
               violation by either party of the provisions of Section 6 of this
               Agreement, such event or Default shall be grounds for immediate
               termination by the other party upon delivery of written notice
               without any requirement of an opportunity to cure.
               (b) Effect.… In the event that this Agreement is terminated by
               either party pursuant to Paragraph (a)(i) or Paragraph (a)(ii) of
               this Section 10, MMDS shall continue for not less than 120 days
               to perform and to be compensated for the performance of services
               in accordance with this Agreement with regard to any accounts
               receivable outstanding as of the effective date of such
               termination.
       Appellant’s App. pp. 49, 50, 53, 54, 55-56, 57, 58-59 (handwritten initials

       omitted).


[13]   MMDS failed to maintain accurate records or adequately report about

       collection efforts. MMDS also failed to notify the Practice about unpaid

       accounts that were over 120 days old. MMDS failed to provide reports

       regarding overdue accounts and also failed to maintain and provide master

       files, patient demographics, and accounts receivable journals to the Practice.


[14]   In approximately 1994, billing issues arose involving the improper use of billing

       codes required by insurers. The Practice experienced communication

       difficulties with MMDS and began receiving patient complaints, which had not

       occurred before. In 1998, improper use of a billing code by MMDS led to a


       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 10 of 34
       Medicare audit of the Practice. In 1999, the Practice was subject to a Medicaid

       audit resulting from MMDS’s misuse of the same billing code. The Medicare

       audit resulted in a fine of over $33,000.00 plus interest and penalties, and the

       Medicaid audit resulted in a $7000.00 fine.


[15]   On July 1, 1999, the Practice sent a termination notice to MMDS, which reads

       as follows:


               Dear Mr. Weichman:
               I am writing on behalf of [the Practice] to give sixty days notice
               of [the Practice’s] termination of the [Agreement] dated May 1,
               1988 between [the Practice] and [MMDS], to be effective
               September 1, 1999. In order to facilitate a smooth transition of
               [the Practice’s] billing to a new billing agent, we expect that
               MMDS will fulfill its obligations under Section 10(b) of the
               Agreement with respect to the transition.
       Appellant’s App. p. 63.


[16]   Section 10(b) of the Agreement required MMDS in the event of termination to

       “employ its best efforts to assist [the Practice] in converting to another billing

       service … and, in connection with such conversion, will make available to such

       other billing service all date in [the Practice’s] data files currently in possession

       of MMDS[.]” Appellant’s App. p. 59. APS Medical Services (“APS”) began

       billing for the Practice on September 1, 1999. MMDS did not transfer any of

       the Practice’s billing records to APS until January of 2000, and no effort seems

       to have been made to transfer any electronically-stored data. By March of

       2000, MMDS had deleted the Practice’s data from its computer and was never

       transferred to the Practice or APS. The Agreement provided that all data

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 11 of 34
       “delivered to and developed by MMDS [was to] remain the sole exclusive

       property” of the Practice. Appellant’s App. p. 55.


                                      IV. Procedural History
[17]   On November 8, 1999, the Plaintiffs filed a complaint against the Defendants.

       The complaint alleged that Weichman and Weichman & Associates

       “mismanaged these investments either negligently, recklessly or intentionally”

       and sought an accounting of Defendants’ handling of all of Plaintiffs’ various

       investments with them. Appellant’s App. p. 43. The Practice also claimed that

       MMDS had breached the terms the Agreement. On January 5, 2000, MMDS

       filed a counterclaim that the Practice breached the Agreement by failing to pay

       for services rendered, and the Defendants filed a defamation counterclaim

       against Dr. Lazzaro.


[18]   Over the course of eighteen days between November 16, 2009, and May 11,

       2010, the cause was tried to the bench. During trial, Defendants moved for

       judgment on the evidence for claims relating to the Investment Entities on the

       basis that the entities themselves had not been made parties. On December 1,

       2009, the trial court granted the motion in part, dismissing the Plaintiffs’ claim

       for an accounting from the Investment Entities. The trial court allowed claims

       of breach of fiduciary duty against Weichman and Weichman & Associates to

       proceed, however, noting that

               Weichman was the Plaintiffs’ personal accountant. He was their
               business management supervisor, servant, slash, employee. He
               was a co-investor, partner, i.e., shareholder with them in

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 12 of 34
               investments. And he was the general partner in the partnerships
               and a managing director in the corporations.
               By allowing these different positions, assuming, by allowing
               himself to assume each of these different positions at the same
               time, there comes the question in these investment entities as to
               whether or not be breached his duty to the Plaintiffs as their
               accountant, regardless of whether he breached his duty to the
               other shareholders, partners, whether he breached his fiduciary
               duty to the corporation of the partnership as a whole by being a
               poor manager, there’s still a question, because while he was
               managing these partnerships and corporations he was also the
               Plaintiffs’ individual accountant and he was their individual
               management employee of their corporation.
       Tr. pp. 1546-47. Following the trial court’s partial denial of their motion for

       judgment on the evidence, the Defendants presented evidence in their defense.

       Defendants did not renew their motion for judgment on the evidence at the

       conclusion of their case.


[19]   On May 3, 2010, the trial court granted a motion for sanctions that had been

       filed by Plaintiffs and prohibited the introduction of certain documents by

       Defendants. Plaintiffs’ proffer indicated that the documents in question

       contained evidence of transactions involving a previous Blunt Ellis account held

       by the Practice some twenty-four years before. The trial court ruled on the

       Plaintiff’s motion as follows:


               Plaintiff files a Motion for Sanctions for Defendant’s alleged
               violation of prior Discovery Orders of this Court. Argument is
               heard. The Court upon review of Trial Rule 34(B) and 37(B)(2),
               and the record herein, now Rules as follows:
               The Court now finds that the Defendant has violated the Court’s
               Discovery Orders of December 12, 2006, and June 5, 2007. As a
       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 13 of 34
               sanction, the Court now enters an Order declaring the discovery
               documents delivered to Plaintiff on April 28, 29, and 30, 2010,
               inadmissible and they are not to be referred to at Trial by any
               witness testimony, per Trial Rule 37(B)(2)(b). Neither the
               documents nor testimony concerning them will be admitted to
               oppose Plaintiff’s claims nor support Defendant’s defenses. Also
               Plaintiffs are entitled to costs and fees for prosecuting the
               Motion.
               This discovery was not delivered to Plaintiff before the discovery
               deadline entered by the Court and is not included in the Pre-Trial
               Order, nor can Defendant show that it was previously delivered
               to the Plaintiffs or their prior Attorneys. Protective Order of the
               above sanctions is entered.
       Appellant’s App. p. 43.


[20]   On February 11, 2014, the trial court entered judgment, which contained the

       following findings and conclusions:

               I. This matter came on for a Bench Trial of 18 days duration
               spread over a period of 7 months. Jurisdiction and venue being
               agreed upon by the Parties. The action was based upon
               Plaintiff’s complaint and Defendant’s answer and counterclaim.
               The Court now enters the following findings of fact:
               ….
               10. By the mid 90’s MMDS was controlling the [Practice’s]
               Profit Sharing Plan and the [Practice’s] Pension Plan and taking
               money from [Practice’s] profits to fund the Profit Sharing Plan
               and made regular deposits into the Pension Plan. Weichman
               invested [the Practice’s] money in [Broad Ridge,] a real estate
               entity that he, (Weichman) managed.
               ….
               12. Weichman opened investment accounts with [Blunt Ellis] (in
               investment Company). Money would be deposited into these
               accounts and then withdrawn with no rational explanation and
       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 14 of 34
        the records of these accounts were not kept by any of the
        Defendants in a regular fashion.
        13. As for these investment accounts the lack of records makes it
        impossible to say how many there were, but they were not
        opened by [the Practice] or the Plaintiffs. In fact their testimony
        was that they knew nothing about them and did not authorize
        and Defendant to open or transfer [Practice] money into them.
        ….
        18. Lazzaro never gave Weichman the authority to take money
        from [the Practice] and use it in [Lazzaro’s personal investments]
        but a $70,000.00 check was written on [the Practice’s Blunt Ellis]
        account and deposited into one of the partnership accounts
        (Broadmoor Country Club account with Gainer Bank). The
        Partnership entity failed and all money invested therein was lost.
        19. The Broadmoor Country Club was an entity that Weichman
        was performing management functions for at this time.
        …
        39. Weichman advised Lazzaro to open a personal investment
        account with [Blunt Ellis] for the purpose of investing in Blue
        Chip Stocks.
        40. Sometime later (on/or about February 20, 1987) without
        Lazzaros’ knowledge or consent[,] Weichman forged Lazzaros’
        name to an application that allowed for options trading from the
        account.
        41. Lazzaro originally deposited $40,000.00 into this account.
        42. Weichman authorized all trading on the Lazzaro account.
        43. Lazzaro’s wife discovered that the account had been altered
        and that margin trading on options was causing interest on the
        margins to be deducted from the account.
        44. Lazzaro lost $20,000.00 due to unauthorized option trading
        losses and expenses on the account.
        ….


Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 15 of 34
                              A. As to Plaintiff’s Complaint
        1. Defendants’ losing, disposing of, and deletion of, most of
        Plaintiff’s records, journals, cancelled checks, and reports
        amounts to spoliation of evidence. Defendant’s summaries are
        self serving[,] inaccurate, and lack credibility.
        2. Due to this spoliation of evidence the Plaintiffs are entitled to
        the presumption that the missing evidence could have been
        detrimental to the Defendants’. See Cahoon Vs. Cummings
        734NE2d535, at 545, (Ind. 2000).
        3. The substantial lack of informational facts due to spoliation
        makes it impossible to determine many areas of Plaintiffs
        damages, and any entry of damages in these areas would be
        based on speculation. This is also true of ordering Defendants to
        prepare an accounting.
        4. The Court will award a remedy without resorting to
        speculation as to areas of damages as possible, but for the above
        reasons cannot order an accounting.
        5. The Defendants … breached their fiduciary duties as
        accountants, shareholders, partners, general partners, managers,
        and caused damages to be suffered by all the Plaintiffs.
        6. MMDS breached [the Agreement] and therefore authorized
        [the Practice] to terminate it.
        7. MMDS[’s] breach resulted in damages to [the Practice].
        8. Weichman converted some of the money in [the Practice’s]
        Profit Sharing and Pension Fund by opening at least one [Blunt
        Ellis] account without the knowledge of [the Practice] and by
        dealing with the money therein as if it were his own he caused
        damages to [the Practice].
        9. Weichman breached his duty as a Partner or General Partner
        in the investment entities, which caused damages to Lazzaro and
        Pabon.




Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 16 of 34
        10. Weichman breached his duty as a Director or Share Holder
        in investment corporations, and caused damages to Lazzaro and
        Pabon.
        11. Weichman, and [Weichman & Associates] breached their
        duties as an Agent of [the Practice] in regard to its Pension and
        Profit Sharing Funds.
        12. Weichman, and [Weichman & Associates] breached their
        duties as Accountants by failing to keep their clients, [the
        Practice], Lazzaro, and Pabon informed of what was being done
        and not done, dealing with their money without their
        authorization and taking advantage of their superior knowledge
        and influence over Plaintiffs’ experience in management and tax
        preparation and other accounting functions. Further by treating
        Plaintiffs’ money as if it belonged to Defendants and converting
        Plaintiffs’ money in some cases. Which caused damage to
        Plaintiffs.
                           B. As to Defendant’s Counterclaim
        1. The law with [the Practice] and against the Counter-claimant
        MMDS on MMDS’ claim for breach of contract.
        2. MMDS breached the contract by its failure to prepare,
        maintain, and provide reports, records, ledger journals to [the
        Practice].
        3. The law is with Lazzaro and against Weichman on his
        defamation and libel claims.
        IV. The Court now enters the following judgments in favor of
        Lazzaro, and [the Practice] and against [the Defendants].
        A. [The Practice] has a judgment for breach of contract,
        conversion, and breach of fiduciary duties against MMDS and
        Weichman in the amount of $110,000.00 plus prejudgment
        interest from November 8, 1999 at 8% per year and judgment
        interest from the date of this Order at 8% per year. (The
        $110,000.00 encompasses treble damages for the act of
        conversion found by the Court).


Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 17 of 34
               B. Lazzaro has a judgment against Weichman, [Weichman &
               Associates], and [MMDS] for breach of fiduciary duties and
               conversion for $340,000.00 plus prejudgment interest from
               November 8, 1999 at 8% per year and judgment interest from the
               date of this Order at 8% per year. (The $340,000.00 encompasses
               treble damages for the acts of conversion found by the Court).
               C. Plaintiff’s claim for an accounting from [Weichman &
               Associates] and MMDS fails due to lack of documentation,
               records and reports what when or if they existed were in the
               exclusive control of Defendants. Thus the Court’s conclusion
               that there does not now exist enough facts and records for
               Defendants’ to realistically prepare a complete accounting for the
               individual and/or collective Plaintiffs.
               D. Plaintiff, Pabon did not prove his individual case by the
               greater weight of the evidence.
               E. Counter-Defendants; Lazzaro, Pabon, and [the Practice]
               receive judgment against Counter-claimants, Defendants, since
               Weichman, and MMDS failed to prove their Counterclaims by
               the greater weight of the evidence.
       Appellant’s App. pp. 28, 29-30, 32-33, 39-41 (record citations omitted).


[21]   Defendants argue on appeal that the trial court erred in (I) not dismissing

       certain of the Plaintiffs’ claims for failure to join indispensable parties, (II)

       concluding that MMDS breached the Agreement despite the Practice’s failure

       to comply with the conditions precedent of sending a notice of default and

       allowing an opportunity to cure, (III) entering judgment in favor of Dr. Lazzaro

       and the Practice on claims regarding the Blunt Ellis accounts, (IV) concluding

       that the Plaintiffs’ claims regarding the Blunt Ellis accounts were not time-

       barred, (V) awarding treble damages based on MMDS’s negligent handling of

       the Practice’s billing, and (VI) excluding certain evidence.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 18 of 34
                                  Discussion and Decision
                                  Overall Standard of Review
[22]   The trial court entered findings of fact and conclusions of law pursuant to

       Indiana Trial Rule 52.


               When a court has made special findings of fact, an appellate
               court reviews sufficiency of the evidence using a two-step
               process. “First, it must determine whether the evidence supports
               the trial court’s findings of fact; second, it must determine
               whether those findings of fact support the trial court’s
               conclusions of law.” Estate of Reasor v. Putnam County, 635
               N.E.2d 153, 158 (Ind. 1994) (citation omitted). Findings will
               only be set aside if they are clearly erroneous. Id. “Findings are
               clearly erroneous only when the record contains no facts to
               support them either directly or by inference.” Id. (citation
               omitted). A judgment is clearly erroneous if it applies the wrong
               legal standard to properly found facts. State v. Van Cleave, 674
               N.E.2d 1293, 1296 (Ind. 1996), reh’g granted in part, 681 N.E.2d
               181 (Ind. 1997). In order to determine that a finding or
               conclusion is clearly erroneous, an appellate court’s review of the
               evidence must leave it with the firm conviction that a mistake has
               been made. Id. at 1295.
       Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). It is well-settled, however,

       that “on appellate review the trial court’s judgment will be affirmed if

       sustainable on any theory or basis found in the record.” Havert v. Caldwell, 452

       N.E.2d 154, 157 (Ind. 1983). We review each of the Appellants’ claims with

       this proposition in mind.


[23]   As an initial matter, it is not entirely clear from the trial court’s order of

       judgment precisely how the trial court allocated damages between the various

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 19 of 34
       defendants—Weichman, Weichman & Associates, and MMDS—or on what

       precise claims the damages were awarded:


               A. [The Practice] has a judgment for breach of contract,
               conversion, and breach of fiduciary duties against MMDS and
               Weichman in the amount of $110,000.00 plus prejudgment
               interest from November 8, 1999 at 8% per year and judgment
               interest from the date of this Order at 8% per year. (The
               $110,000.00 encompasses treble damages for the act of
               conversion found by the Court).
               B. Lazzaro has a judgment against Weichman, [Weichman &
               Associates], and [MMDS] for breach of fiduciary duties and
               conversion for $340,000.00 plus prejudgment interest from
               November 8, 1999 at 8% per year and judgment interest from the
               date of this Order at 8% per year. (The $340,000.00 encompasses
               treble damages for the acts of conversion found by the Court).
       Appellant’s App. pp. 40-41.


[24]   At least one aspect of the above must be set aside as unsupported by the record.

       To the extent that the trial court entered judgment against MMDS in favor of

       Dr. Lazzaro, that entry cannot be affirmed, as Dr. Lazzaro individually made

       no claim against MMDS. Evaluation of the trial court’s judgment, when

       considered together with the Plaintiffs’ actual claims, leads to the following

       inferences: (1) the trial court’s award of $110,000.00 to the Practice is a

       combination of damages resulting from MMDS’s breaches of the Agreement

       and/or damages arising from the Blunt Ellis account Weichman opened using

       Practice money, and (2) the trial court’s award of $340,000.00 to Dr. Lazzaro is

       a combination of damages resulting from Weichman’s unauthorized trading on

       the Blunt Ellis account and/or damages resulting from Weichman’s improper

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 20 of 34
       or negligent handling of Investment Entity funds. It is also not possible to

       determine which portion of each award represents treble damages due to

       conversion, as both awards rest on multiple bases.


       I. Whether Dr. Lazzaro and the Practice Were Required
       to Name Additional Parties to Pursue Claims for Breach
                        of Fiduciary Duties
[25]   Weichman and Weichman & Associates contend that Dr. Lazzaro and the

       Practice failed to bring in all of the necessary parties in their claim for breach of

       fiduciary duties with respect to the Investment Entities, namely, the Investment

       Entities themselves. Dr. Lazzaro and the Practice first argue that Weichman

       and Weichman & Associates did not renew their motion for judgment on the

       evidence at the conclusion of their case and have therefore waived this

       argument for appellate review. We agree. “We have held that when a

       defendant moves for a judgment on the evidence and then introduces evidence

       on his own behalf after the motion is denied, the defendant has waived any

       alleged error regarding the denial of the motion.” Hartford Steam Boiler

       Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1134 (Ind. Ct. App. 2002), trans.

       denied; see also Ind. Trial Rule 50(A)(6) (“A motion for judgment on the

       evidence made at one stage of the proceedings is not a waiver of the right of the

       court or of any party to make such motion on the same or different issues or

       reasons at a later stage as permitted above, except that error of the court in

       denying the motion shall be deemed corrected by evidence thereafter offered or



       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 21 of 34
       admitted.”). Weichman and Weichman & Associates have waived this issue

       for appellate review.


[26]   In any event, because the merits of this claim are easily disposed of, we elect to

       address them. As Weichman and Weichman & Associates point out, the

       precise question of whether an entity from which an accounting is sought must

       be a party has not been squarely addressed in Indiana, but relies on the Court of

       Appeal of Louisiana’s holding that “[i]t is our opinion that the orderly

       liquidation and settlement of a partnership requires that the partnership itself, in

       addition to the members thereof be made a party to the proceedings.” Quarles v.

       Albritton, 116 So. 2d 175, 178 (La. Ct. App. 1959). While this seems a sensible

       enough rule, the facts of this case do not require us to adopt or reject it. While

       the Plaintiffs did, indeed, seek an accounting from the various Investment

       Entities, such an accounting was not done. As previously mentioned, the trial

       court concluded that the state of available records made an accounting by any

       of the Investment Entities impossible. Because no accountings were actually

       done, any error in not requiring the Investment Entities to be joined as parties

       can only be considered harmless. “An error is harmless if it does not affect the

       substantial rights of the parties.” Bonnes v. Feldner, 642 N.E.2d 217, 219 (Ind.

       1994) (citing Ind. Trial Rule 61).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 22 of 34
       II. Whether Plaintiffs’ Alleged Failure to Send a Notice
       of Default or Extend an Opportunity to Cure to MMDS
       Necessitates Dismissal of their Breach of Contract Claim
[27]   “The first rule in the interpretation of contracts is to give meaning and effect to

       the intention of the parties as expressed in the language of the contract.” Stech

       v. Panel Mart, Inc., 434 N.E.2d 97, 100 (Ind. Ct. App. 1982). “In ascertaining

       the intention of the parties, a court must construe the instrument as a whole,

       giving effect to every portion, if possible.” Id. “In interpreting an unambiguous

       contract, a court gives effect to the parties’ intentions as expressed in the four

       corners of the instrument, and clear, plain, and unambiguous terms are

       conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135,

       1142 (citing Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft.

       Wayne, Inc., 683 N.E.2d 243, 247 (Ind. Ct. App. 1997)). “Courts may not

       construe clear and unambiguous provisions, nor may it add provisions not

       agreed upon by the parties.” Id. (Ind. Ct. App. 2003) (citing Hyperbaric Oxygen

       Therapy Sys., 683 N.E.2d at 247-48). However, it is well-settled that “[i]f the

       terms of a written contract are ambiguous, it is the responsibility of the trier-of-

       fact to ascertain the facts necessary to construe the contract.” Newnam Mfg., Inc.

       v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind. Ct. App. 2007). “A contract is

       ambiguous only if reasonable persons would differ as to the meaning of its

       terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam v. Wausau Ins. Co.,

       765 N.E.2d 524, 528 (Ind. 2002)).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 23 of 34
                                                  A. Breach
[28]   MMDS argues that the Practice’s failure to send it a notice of default or give it

       an opportunity to cure any default rendered the Practice’s September 1, 1999,

       termination of the Agreement ineffective. The Practice counters that MMDS

       violated Section 6 of the Agreement, thereby entitling the Practice to terminate

       the Agreement without providing MMDS with notice of default or affording it

       an opportunity to cure. MMDS responds to the Practice’s contention by

       arguing that there is no trial court finding that the Practice violated Section 6 of

       the Agreement and, in any event, nothing in the record that would support such

       a finding. We conclude that MMDS is correct on this point.


[29]   As previously mentioned, only a violation of Section 6 of the Agreement by

       either party allows the other party the right of immediate termination without

       opportunity to cure. The Practice points to evidence that MMDS’s improper

       coding resulted in delays in payment and nonpayment to the Practice and

       contends that those violations of the Agreement constituted unauthorized

       disclosures of the Practice’s proprietary or confidential information.

       Consequently, the Practice argues, MMDS violated Section 6, which allowed

       the Practice to terminate the Agreement immediately without affording an

       opportunity to cure. We do not see, and the Practice does not explain, how

       improper billing constitutes an unauthorized disclosure of confidential

       information.


[30]   The Practice also argues that MMDS’s failure to maintain and provide to the

       Practice master files and accounts-receivable journals violated Section 6’s
       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 24 of 34
       requirement that “all data of Client delivered to and developed by MMDS is

       and shall remain the sole and exclusive property of the Client[.]” Appellant’s

       App. p. 55. As with its previous Section 6 argument, the Practice fails to

       explain, and we do not see, how a failure to turn over and provide proper

       record following the Practice’s termination of the Agreement, without more,

       constituted a violation of Section 6. Consequently, without a Section 6

       violation, the Practice could not avail itself of the Agreement’s language

       allowing termination based on an alleged default without opportunity to cure.


[31]   In any event, the Practice did not allege a default in its notice of termination; it

       seems apparent that the Practice was attempting, at least, to terminate pursuant

       to Section 10(a)(i), which provided for termination “[a]t the end of the initial

       term or of any renewal term of this Agreement, upon delivery of written notice

       by either party not less than sixty (60) days prior to the expiration date of any

       such initial renewal term[.]” Appellant’s App. p. 58. This provision does not,

       however, allow for termination sixty days from the notice but only at the end of

       the next renewal term. Therefore, the Practice’s July 1, 1999, notice was

       sufficient to establish a termination date of April 30, 2000, not September 1,

       1999. The trial court’s conclusion that MMDS failed to establish a breach by

       the Practice is clearly erroneous.


                B. Effect of the Practice’s Breach of the Agreement
[32]   Having concluded that MMDS established a breach of the Agreement by the

       Practice, we must now determine the relief. MMDS contends that the

       Practice’s breach of contract claim must be dismissed entirely because of its
       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 25 of 34
       improper termination of the Agreement. The Practice does not respond to this

       argument, resting on its argument that its termination of the Agreement was

       proper. Despite the Practice’s failure to specifically respond to MMDS’s

       argument, we cannot accept that the proper remedy is dismissal of the

       Practice’s claim against MMDS.


[33]   Although the issue does not appear to have been squarely addressed in Indiana

       for quite some time, it seems clear that when one party sues for breach of

       contract and the other countersues for breach of the same contact, the proper

       remedy when both parties are found to have breached is a set-off of the parties’

       respective damages. In Houston v. Young, 7 Ind. 200 (1855), Houston leased a

       farm to Young with the stipulation “that Young should put the farming land,

       estimated to contain one hundred and thirty acres, in corn.” Id. at 200.


               The ground was to be properly prepared and in good season; the
               fallen timber cleared off; the fences righted up; and every thing
               done in a farmer-like manner. The corn was to be plowed at least
               three times, and the house, barn and orchards properly cared for.
               Houston and others, on their part, were to maintain the plaintiffs
               in the possession of the premises, so long as they continued to
               fulfill the contract; grant them certain privileges necessary to its
               proper enjoyment; and at the close of the period of tending the
               crop, release them from any further care thereof; and pay them 3
               dollars per acre for the cultivation of the corn. The rails for
               repairs were also to be hauled by Houston and others, the
               defendants below.
       Id.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 26 of 34
[34]   Young eventually brought suit, alleging that Houston and others failed to pay

       the agreed-upon three dollars per acre and requested $420.00 in damages. Id.

       The defendants answered, alleging

               1. That the plaintiffs had failed to cultivate, &c., in good season,
               in a proper manner, &c., laying their damages, by reason of such
               negligence, at 400 dollars.
               2. The second paragraph alleges a failure to perform in relation
               to clearing off the timber and repairing the fences, &c., laying
               their damages in this regard at 200 dollars.
               3. The third paragraph alleges a payment of 246 dollars and 81
               cents on the contract.
       Id.


[35]   Following entry of judgment in favor of Young for $70.00, Houston appealed,

       essentially arguing that the trial court “did not allow the defendants a sufficient

       amount in damages by way of recoupment.” Id. at 201. The Indiana Supreme

       Court reversed, holding as follows:


               That the defendants were entitled to recoupment, can not be
               doubted. Recoupment will be allowed whenever an action for
               damages can be sustained and thus circuity of action avoided.
               Clark v. Wildridge, 5 Ind. 176. For the careless and unfarmerlike
               manner of cultivation disclosed in the evidence, Houston and
               others could have maintained an action for damages. They were,
               therefore, entitled to recoup. And Courts will favor recoupment
               rather than to drive the party to a separate action.
       Id. at 202.


[36]   The principle enunciated in Houston—that claims by both parties alleging

       breach of the same agreement can be disposed of in the same suit—remains

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 27 of 34
       good law. Consequently, we remand with instructions for trial on the question

       of MMDS’s damages resulting from the Practice’s improper termination of the

       Agreement, any amount found to be set off against the Practice’s damages

       resulting from MMDS’s breaches.


           III. Whether Judgment in the Plaintiffs’ Favor for
        Claims Regarding the Blunt Ellis Accounts Is Supported
                        by Sufficient Evidence
[37]   Weichman and Weichman & Associates contend that insufficient evidence

       supports the trial court’s judgment to the extent that it concluded that

       Weichman and Weichman & Associates converted money that was deposited

       in the Blunt Ellis accounts. As previously mentioned, we will not set aside the

       judgment of the trial court unless it is clearly erroneous. “We will not reweigh

       the evidence nor reassess the credibility of the witnesses before the court.”

       Speed v. Old Fort Supply Co., 737 N.E.2d 1217, 1219 (Ind. Ct. App. 2000).

       “Rather, we will affirm if there is sufficient evidence of probative value to

       support the decision, viewing the evidence most favorable to the judgment and

       the reasonable inferences drawn therefrom.” Id.


[38]   Although both Dr. Lazzaro personally and the Practice had claims against

       Weichman regarding Blunt Ellis accounts, the Defendants’ argument is limited

       to whether sufficient evidence was presented to support a finding that

       Weichman converted Practice funds that were deposited in its Blunt Ellis

       account. We conclude that the Practice presented sufficient evidence to support

       such a conclusion.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 28 of 34
[39]   Patricia testified that the Practice’s Blunt Ellis account was discovered in 1999,

       records dating back to 1987 were eventually discovered, and that nobody

       associated with the Practice authorized the account. The Practice also

       presented evidence that between January of 1987 and July of 1992,

       $1,437,000.00 was deposited in the Practice’s Blunt Ellis account while

       $1,387,000.00 was withdrawn, resulting in losses of approximately

       $1,300,000.00. The vast majority of the money withdrawn from the Practice’s

       Blunt Ellis account was taken out the day it was deposited or the day after.

       Among the transactions was a 1990 check written by Weichman from the

       Practice’s Blunt Ellis account to Broadmoor for $70,000.00. The payment was

       authorized by neither Dr. Lazzaro nor Dr. Pabon, and there does not seem to

       have been a legitimate business reason for the transfer, as the Practice never

       invested in Broadmoor.


[40]   At the very least, the $70,000.00 transfer from the Practice’s Blunt Ellis account

       to Broadmoor, an Investment Entity controlled by Weichman, raises a

       reasonable inference of conversion. “Conversion, as a tort, consists either in

       the appropriation of the personal property of another to the party’s own use and

       benefit, or in its destruction, or in exercising dominion over it, in exclusion and

       defiance of the rights of the owner or lawful possessor, or in withholding it from

       his possession, under a claim and title inconsistent with the owner’s.”

       Computers Unlimited, Inc. v. Midwest Data Sys., Inc., 657 N.E.2d 165, 171 (Ind. Ct.

       App. 1995) (citing Shank Fireproof Warehouse Co. v. Harlan, 108 Ind. App. 592,

       29 N.E.2d 1003 (1940)). We conclude that a reasonable fact-finder could find


       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 29 of 34
       that the unauthorized transfer of the Practice’s funds from an unauthorized

       account to an Investment Entity controlled by Weichman amounts to the

       appropriation of the Practice’s property for personal use. This conversion by

       itself, when trebled, is more than sufficient to account for the $110,000.00

       judgment entered in favor of the Practice. Weichman and Weichman &

       Associates have failed to establish that the trial court’s judgment, to the extent

       that it involves the Blunt Ellis account, is unsupported by sufficient evidence.


        IV. Whether the Plaintiffs’ Claims Regarding the Blunt
        Ellis Accounts Are Barred by the Statute of Limitations
[41]   The Defendants contend that all claims based on Blunt Ellis accounts are barred

       by the statute of limitations, which provides as follows:

               The following actions must be commenced within six (6) years
               after the cause of action accrues:
               (1) Actions on accounts and contracts not in writing.
               (2) Actions for use, rents, and profits of real property.
               (3) Actions for injuries to property other than personal property,
               damages for detention of personal property and for recovering
               possession of personal property.
               (4) Actions for relief against frauds.
       Ind. Code § 34-11-2-7.


[42]   The Plaintiffs, inter alia, note that the Defendants failed to assert a statute of

       limitations defense in their responsive pleading and argue that they have

       therefore waived it. It is well-settled that “Indiana Trial Rule 8(C) requires

       parties to plead some affirmative defenses … or forfeit them.” Bunch v. State,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 30 of 34
       778 N.E.2d 1285, 1287 (Ind. 2002). A statute of limitations defense is one of

       the affirmative defenses mentioned in Trial Rule 8(C): “A responsive pleading

       shall set forth affirmatively and carry the burden of proving: … statute of

       limitations[.]” Because Defendants failed to assert a statute of limitations

       defense in their responsive pleadings, they may not now raise it on appeal. See

       Sloan v. Town Council of Town of Patoka, 932 N.E.2d 1259, 1260 (Ind. Ct. App.

       2010) (“At no time did the Town of Patoka raise the affirmative defense in

       Sloan’s inverse condemnation cause. Therefore, we find that the Town waived

       its Statute of Limitations claim.”).


         V. Whether the Trial Court Properly Awarded Treble
         Damages to Plaintiffs for MMDS’s Negligent Handling
                       of the Practice’s Billing
[43]   MMDS contends that the trial court erred in awarding treble damages based on

       MMDS’s negligent handling of the Practice’s billing. Indiana Code section 34-

       24-3-1 provides as follows:

               If a person has an unpaid claim on a liability that is covered by
               IC 24-4.6-5 or suffers a pecuniary loss as a result of a violation of
               IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9, the person
               may bring a civil action against the person who caused the loss
               for the following:
               (1) An amount not to exceed three (3) times:
               (A) the actual damages of the person suffering the loss, in the
               case of a liability that is not covered by IC 24-4.6-5; or
               (B) the total pump price of the motor fuel received, in the case of
               a liability that is covered by IC 24-4.6-5.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 31 of 34
               (2) The costs of the action.
               (3) A reasonable attorney’s fee.
[44]   As previously mentioned, it is not possible to precisely determine which portion

       of the trial court’s award to the Practice was based on misconduct by

       Weichman and/or Weichman & Associates and which portion was based on

       MMDS’s breach of the Agreement. However, as we have previously

       concluded, the Practice presented evidence of a $70,000.00 conversion by

       Weichman, more than sufficient by itself to support the trial court’s $110,000.00

       judgment in favor of the Practice. Any possible error the trial court may have

       made in awarding treble damages based on MMDS’s conduct can only be

       considered harmless. “An error is harmless if it does not affect the substantial

       rights of the parties.” Bonnes, 642 N.E.2d 219 (citing Ind. Trial Rule 61).


          VI. Whether the Trial Court Abused its Discretion in
               Excluding Certain Blunt Ellis Documents
[45]   Defendants contend that the trial court abused its discretion in excluding

       certain documents proffered during trial, documents pertaining to Blunt Ellis

       accounts which, according to Defendants, contradict Dr. Lazzaro’s claims of

       ignorance about the accounts. Pursuant to Trial Rule 37(B)(2)(b), failure to

       comply with a discovery order allows the trial court, inter alia, to issue “[a]n

       order refusing to allow the disobedient party to support or oppose designated

       claims or defenses, or prohibiting him from introducing designated matters in

       evidence[.]”




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 32 of 34
               The grant or denial of motions for discovery, motions for
               sanctions, and motions for a continuance rests in the sound
               discretion of the trial court, and will be reversed only for an abuse
               of that discretion. Keesling v. Baker & Daniels (1991), Ind. App.,
               571 N.E.2d 562, 566, trans. denied (discovery); Nesses v. Specialty
               Connectors Co., Inc. (1990), Ind. App., 564 N.E.2d 322, 327
               (sanctions); Danner v. Danner (1991), Ind. App., 573 N.E.2d 934,
               937, trans. denied (continuance). An abuse of discretion occurs
               when the trial court’s decision is against the logic and effect of
               the facts of the case. Terre Haute Regional Hospital, Inc. v.
               Trueblood (1991), Ind. App., 579 N.E.2d 1342, 1345, reh’g denied.
       Hudgins v. McAtee, 596 N.E.2d 286, 289 (Ind. Ct. App. 1992).


[46]   In light of the circumstances of the attempted introduction of the documents in

       question and the Defendants’ history of discovery abuses in this case, we cannot

       say that the trial court abused its discretion in this regard. Defendants did not

       attempt to introduce the Blunt Ellis documents until May 3, 2010, after trial had

       begun and over ten years after Plaintiffs originally filed suit. As the trial court

       noted, the failure to discover the material violated discovery orders entered on

       December 12, 2006, and June 5, 2007. Moreover, the Defendants had

       demonstrated a history of discovery abuses, some of which had previously

       resulted in sanctions. Discovery disputes and delays resulted in the imposition

       of sanctions on Defendants in 2002. Depositions had to be delayed due to the

       Defendants’ lack of document production. The trial court entered sanctions

       against Defendants again in 2005, and awarded attorney’s fees of $14,057.50 to

       Plaintiffs in 2007. In light of the Defendants’ failure to comply with long-

       standing discovery orders and their history of discovery abuses, we cannot say

       that the trial court abused its discretion in this regard.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 33 of 34
                                                Conclusion
[47]   We conclude that the trial court correctly refused to dismiss Plaintiffs’ claims

       related to the Investment Entities for failure to join indispensable parties,

       entered judgment in favor of Dr. Lazzaro and the Practice on claims regarding

       the Blunt Ellis accounts, and excluded the evidence of Blunt Ellis accounts

       proffered at trial. We further conclude that the Defendants waived any statute

       of limitations defense they might have had to allegations related to the Blunt

       Ellis accounts and that any error the trial court might have made imposing

       treble damages for MMDS’s breach of the Agreement is harmless. Finally, we

       conclude that the trial court erred in dismissing MMDS’s breach of contract

       claim against the Practice and remand for trial on the question of damages only.


[48]   The judgment of the trial court is affirmed in part and reversed in part, and we

       remand with instructions.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015   Page 34 of 34
