      ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      George T. Patton, Jr.                                     Michael L. Einterz, Jr.
      Bryan H. Babb                                             Einterz & Einterz
      Bose McKinney & Evans LLP                                 Zionsville, Indiana
      Indianapolis, Indiana

      Jeffrey S. Nickloy                                                              Oct 14 2015, 9:08 am
      Nickloy & Higdon
      Noblesville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Techna-Fit, Inc. and                                      October 14, 2015
      Stuart Trotter,                                           Court of Appeals Case No.
      Appellants,                                               32A05-1410-PL-462
                                                                Appeal from the Hendricks Circuit
              v.                                                Court

      Fluid Transfer Products, Inc.,                            The Honorable Jeffrey V. Boles,
                                                                Judge
      Appellee.
                                                                Cause No. 32C01-1302-PL-21



      Najam, Judge.


                                        Statement of the Case
[1]   Techna-Fit, Inc. filed a complaint against Fluid Transfer Products, Inc. (“FTP”)

      alleging, among other claims, that FTP engaged in unfair competition with

      Techna-Fit in violation of a provision of the Lanham Act, 15 U.S.C. § 1125,

      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015               Page 1 of 36
      and seeking injunctive relief. FTP filed a counterclaim against Techna-Fit

      alleging breach of contract and a third-party claim against Stuart Trotter

      alleging breach of contract, breach of fiduciary duty, defamation, and

      deception. Techna-Fit and FTP each filed motions for partial summary

      judgment, which the trial court denied. Following a bench trial with the

      assistance of an advisory jury, the trial court entered judgment in favor of FTP

      on Techna-Fit’s claims, its counter-claim against Techna-Fit for breach of

      contract, and its third-party claims against Trotter for breach of contract and

      breach of fiduciary duty. The trial court awarded damages to FTP as follows:

      $662,901.86 for Techna-Fit and Trotter’s breach of contract; $125,000 for

      Trotter’s breach of fiduciary duty; and punitive damages for Trotter’s breach of

      fiduciary duty in the amount of $1,500,000. FTP requested attorney’s fees,

      which the trial court awarded following a hearing. Techna-Fit filed a motion to

      correct error, which the trial court denied.


[2]   Techna-Fit1 now appeals and presents the following issues for our review:

               1.       Whether the trial court erred when it denied Techna-Fit’s
                        motion for partial summary judgment as an improper
                        repetitive motion under Trial Rule 53.4;

               2.       Whether the trial court abused its discretion when it
                        excluded certain evidence at trial;




      1
        Techna-Fit and Trotter jointly appeal the trial court’s judgment. For ease of discussion, we generally will
      refer to Techna-Fit and Trotter collectively as Techna-Fit.

      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                        Page 2 of 36
                3.      Whether the trial court abused its discretion when it
                        refused a proposed jury instruction;

                4.      Whether the trial court erred when it found that a release
                        executed by Techna-Fit and FTP did not preclude FTP’s
                        breach of contract claim against Techna-Fit;

                5.      Whether the trial court erred when it awarded FTP
                        $1,500,000 in punitive damages; and

                6.      Whether the trial court abused its discretion when it
                        awarded FTP $146,661.43 in attorney’s fees.


[3]   We affirm in part and reverse in part.2


                                   Facts and Procedural History
[4]   In 1996, in California, Trotter founded Techna-Fit, which manufactures and

      sells aftermarket brake lines, clutch lines, and other automotive products for

      hundreds of different vehicles. In 1999, Techna-Fit developed a system for

      numbering its parts, combining a series of letters and numbers to indicate a

      particular number of brake line or clutch line and the automobile for which the

      line could be used. For example, part number “MIT1025” indicates a brake

      line for a Mitsubishi Lancer.


[5]   In 2005, Trotter and Michael Lang formed FTP, an Indiana corporation. FTP

      manufactured and sold products under the Techna-Fit brand name, and




      2
          We held oral argument on August 31, 2015.



      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015     Page 3 of 36
      Techna-Fit gave the majority of its east coast and midwestern customers to

      FTP.3 FTP used Techna-Fit’s parts-numbering system. Initially, Trotter owned

      80% of FTP’s stock, and Lang owned the remaining 20%. Over time, Lang’s

      ownership increased to 50%.


[6]   In 2012,


               [a] dispute arose . . . between Mr. Trotter and Mr. Lang
               regarding Mr. Lang’s decisions and the operation of FTP. In
               March 2012, Mr. Trotter asked that FTP be shut down. Mr.
               Lang did not agree with this plan. So, on April 9, 2012, Mr.
               Trotter filed a lawsuit for dissolution of FTP against Mr. Lang
               for breach of fiduciary duties to FTP.

               On April 18, 2012, Mr. Trotter formed a new Indiana
               corporation also known as Techna-Fit, Inc., the purpose of which
               was to do the exact same thing as FTP and California Techna-Fit
               had been doing. At the time, Mr. Trotter was the sole owner of
               both the California and the Indiana corporations named Techna-
               Fit, Inc. Mr. Lang was initially unaware of the formation or
               existence of Mr. Trotter’s new Indiana corporation.

               In May 2012, Techna-Fit hired FTP’s employee Chris Herman to
               work in Techna-Fit’s new Indiana location.

               Mr. Trotter and Mr. Lang were able to negotiate a settlement of
               the lawsuit Mr. Trotter had filed against FTP and Mr. Lang.
               They entered into a settlement agreement entitled Mutual
               Release and Stock Sale Agreement—or simply, “the Mutual
               Release.” Mr. Trotter and Techna-Fit, as well as Mr. Lang and



      3
        Trotter testified in his deposition that “we specifically set it up as a different name to sell to people [who]
      didn’t like me[.]” Appellants’ App. at 155.

      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                             Page 4 of 36
              FTP, were parties to this Mutual Release, which included a
              variety of releases and promises, as well as providing for the sale
              of all of Mr. Trotter’s interests in FTP. The Mutual Release was
              executed in June 2012, and thereafter Techna-Fit and FTP
              proceeded with their business[es] as separate competitors.


      Appellants’ App. at 1352-53.


[7]   The parties’ Mutual Release provided in relevant part as follows:


              4. Exchange of Customer Data. Trotter has access to FTP’s
              Customer Data, including the names, addresses and purchase
              history of all customers to which FTP has sold products, as well
              as the phone numbers and identity of customer-contacts for each
              such customer, all of which is collectively referred to herein as
              Customer Data. Both Trotter and FTP may continue to use the
              Customer Data following Closing. Trotter may provide the
              Customer Data to Techna-Fit for Techna-Fit’s legitimate use, or
              to any other business entity solely owned by Trotter or Techna-
              Fit but Trotter (and Techna-Fit) shall not provide the Customer
              Data to any third party, and shall take all reasonable efforts to
              maintain the confidentiality of the Customer Data.

                                                       ***

              7. Government Certification. FTP shall not make any
              representations that it has current government certification for
              any of its products through any ongoing agreement or
              relationship with Techna-Fit, or otherwise represent to anyone
              that it has any business relationship of any kind with Techna-Fit.

              8. Non-Disparagement and Non-Interference. . . . None of the Parties
              will interfere in the legitimate business of the other Parties or
              induce or encourage any supplier to refrain from doing business
              with any other Party. But nothing herein shall prevent a Party
              from entering into an exclusive relationship with either a supplier

      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015    Page 5 of 36
              or a customer, or from engaging in legitimate competition with the
              other Party.

                                                       ***

              11. Release of Lang and FTP. Trotter and Techna-Fit jointly and
              severally release FTP and Lang from (a) all debts, duties and
              obligations of any kind which either FTP or Lang may have
              jointly or severally owed to Trotter or Techna-Fit prior to
              Closing, and (b) all claims, complaints and causes of action
              which Trotter or Techna-Fit had or may have had against FTP or
              Lang, either jointly or severally, that existed prior to Closing.
              But, the releases herein granted shall not apply until Closing is
              completed, and shall become void if this agreement is breached by FTP
              or Lang within 12 months following Closing. This release shall apply
              to both known and unknown debts, duties, obligations, claims,
              complaint and causes of action.

              12. Release of Trotter and Techna-Fit. FTP and Lang jointly and
              severally release Trotter and Techna-Fit from (a) all debts, duties
              and obligations of any kind which either Techna-Fit or Trotter
              may have jointly or severally owed to Lang or FTP prior to
              Closing, and (b) all claims, complaints and causes of action
              which Lang or FTP had or may have had against Techna-Fit or
              Trotter, either jointly or severally, that existed prior to Closing.
              But, the releases herein granted shall not apply until Closing is
              completed, and shall become void if this agreement is breached by
              Techna-Fit or Trotter within 12 months following Closing. This
              release shall apply to both known and unknown debts, duties,
              obligations, claims, complaint and causes of action.


      Appellants’ Addendum to Br. at Tab 3 (emphases added).


[8]   When Trotter left FTP and started Techna-Fit Indiana, Trotter did not require

      FTP to change its parts-numbering system, and nothing in the Mutual Release

      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 6 of 36
      addressed FTP’s continued use of that system. Accordingly, FTP continued to

      use the same parts-numbering system that it had been using since its inception,

      and Techna-Fit continued to use the same system, as well. A short time after

      the two companies split, Techna-Fit received complaints from customers about

      what they thought were Techna-Fit products, but Techna-Fit discovered that

      the parts had been manufactured by FTP. Accordingly, Techna-Fit’s lawyer

      contacted FTP’s lawyer to inform FTP about the problem. Specifically,

      Techna-Fit informed FTP that Techna-Fit’s parts-numbering system was

      unique to Techna-Fit and FTP’s use of the same system was causing customer

      confusion. Techna-Fit also contacted several of FTP’s distributors, including

      TH Motorsports, and told them to stop using the Techna-Fit name on purchase

      orders submitted to FTP. Over the course of several months and after several

      emails between Techna-Fit’s and FTP’s lawyers, FTP agreed to change its

      parts-numbering system effective February 1, 2013. In the meantime, FTP

      learned that: shortly after Techna-Fit and FTP began to compete against one

      another in 2012, Techna-Fit filled orders that had been directed to FTP but

      received by Techna-Fit; Techna-Fit copied and sold product designs belonging

      to an FTP customer without permission; and Techna-Fit filled orders requesting

      parts identified with FTP’s new parts-numbering system.


[9]   On February 7, 2013, Techna-Fit filed a complaint against FTP alleging unfair

      competition due to FTP’s use of Techna-Fit’s parts-numbering system and

      seeking damages and injunctive relief. FTP filed an answer and asserted

      affirmative defenses, a counter-claim against Techna-Fit alleging breach of


      Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 7 of 36
       contract, and a third party complaint alleging that: Trotter and Techna-Fit

       Indiana4 breached the Mutual Release; Trotter breached his fiduciary duty; and

       Trotter committed defamation and deception. Thereafter, Techna-Fit moved to

       amend its complaint to add TH Motorsports, a distributor for products made by

       FTP, and Lang as defendants, and the trial court granted that motion. Also in

       its amended complaint, Techna-Fit alleged that FTP and TH Motorsports:

       engaged in unfair competition in violation of the Lanham Act; committed

       deception “by working together to pass off [FTP]’s products as those of Techna-

       Fit”; and conspired “to divert profits from Techna-Fit by means of deception.”

       Appellants’ App. at 108.


[10]   On October 9, 2013, FTP moved for partial summary judgment on Techna-Fit’s

       claims alleging unfair competition, breach of contract, and conspiracy. In its

       brief in opposition to partial summary judgment, Techna-Fit alleged in relevant

       part that the “uncontested facts entitle Techna-Fit to summary judgment on the

       issue of FTP’s liability to Techna-Fit on its Lanham Act claims.”5 Id. at 431.

       The trial court denied “the motions for partial summary judgment” following a

       hearing. Id. at 772.




       4
         Techna-Fit, the California corporation, filed the complaint against FTP. FTP named as a third-party
       defendant Techna-Fit, the Indiana corporation. For ease of discussion, we will distinguish between the
       California and Indiana corporations only where necessary as relevant to our analysis.
       5
         Indeed, under Trial Rule 56(B), “[w]hen any party has moved for summary judgment, the court may grant
       summary judgment for any other party upon the issues raised by the motion although no motion for
       summary judgment is filed by such party.”

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                      Page 8 of 36
[11]   On March 28, 2014, Techna-Fit moved for partial summary judgment on its

       claim alleging unfair competition in violation of the Lanham Act. Techna-Fit

       designated some of the same evidence it had designated in opposition to FTP’s

       prior motion for partial summary judgment on the same claim, but Techna-Fit

       also designated additional evidence. On April 2, FTP moved the trial court to

       deny Techna-Fit’s motion for partial summary judgment as an improper

       repetitive motion under Trial Rule 53.4. FTP asked the trial court to “deem

       [the] motion[] denied as of April 2, 2014.” Id. at 1307. In particular, FTP

       stated as follows: “FTP recognizes that the denial under T.R. 53.4 is typically

       automatic. However, to avoid any lapse in FTP’s right to respond to the

       motion and to designate materials in response, FTP requests that this Court

       issue an affirmative ruling on this issue.” Id. at 1309. On April 3, the trial court

       denied Techna-Fit’s motion for partial summary judgment “as repetitive

       pursuant to T.R. 53.4.” Accordingly, FTP did not file a response to Techna-

       Fit’s motion for partial summary judgment.


[12]   After the trial court set the matter for a jury trial, Techna-Fit moved the court to

       remove the case from the jury trial docket. In particular, Techna-Fit stated that

       none of the parties had timely requested a jury trial and it was seeking

       “primarily equitable relief to stop the long-running and continuous violation of

       its rights. Because the relief sought sounds primarily in equity, the case, as a

       whole, properly belongs in front of the court rather than a jury.” Id. at 112.2.

       Accordingly, the trial court set the matter for a bench trial, and the court sua

       sponte empaneled an advisory jury.


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 9 of 36
[13]   Trial was held June 24-26, 2014.6 In its opening statement, Techna-Fit stated

       that its


               three claims boil down to this. One, a federal claim for unfair
               competition for palming off these parts on the public. Secondly,
               a claim that FTP’s behavior was deceptive and deceived the
               public into thinking that it was selling Techna-Fit parts when
               they were in fact made by FTP. And then third, this conspiracy
               claim that directly deals with the conspiracy between Techna-Fit
               and TH Motorsports to palm off these parts.


       Tr. at 113-14. And FTP explained its case against Techna-Fit as follows:

               This case is about parts numbers, but that’s only a small fraction
               of what’s going on here. At its core, this case is about bullying.
               Bullying is the use of force, threat, or coercion to abuse,
               intimidate, or aggressively dominate another. . . . Stuart Trotter
               has actively, intentionally, maliciously plotted and schemed to
               destroy Michael Lang’s livelihood and FTP. While he was still
               the owner, Techna-Fit and Trotter cut off FTP[’s] supply of
               critical components and then they tapped into FTP’s computer
               system and they found the customers that FTP was having
               backorder issues with because they couldn’t supply parts. Then
               they called up those customers and said, “Hey, Techna-Fit will
               sell you those brake lines.” They started a company here in
               Indiana just to service the customers they were taking from FTP.


       Id. at 121.




       6
         Lang and TH Motorsports were dismissed as defendants prior to trial. Trotter testified that Techna-Fit
       settled with TH Motorsports for $3,000.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                     Page 10 of 36
[14]   The advisory jury found against Techna-Fit on its claims and in favor of FTP

       on all but one of its counter-claims and third-party claims, and the advisory jury

       awarded damages to FTP as follows: $662,901.86 for Techna-Fit and Trotter’s

       breach of contract; $125,000 for Trotter’s breach of fiduciary duty; and

       $1,500,000 in punitive damages for Trotter’s breach of fiduciary duty.7 In

       entering final judgment, the trial court agreed with and adopted the advisory

       jury’s verdict and, following a hearing, the trial court also awarded FTP

       $146,661.43 in attorney’s fees. Techna-Fit filed a motion to correct error,

       which the trial court denied. This appeal ensued.


                                         Discussion and Decision
                     Issue One: Denial of Motion for Partial Summary Judgment

[15]   Techna-Fit contends that the trial court erred when it denied its motion for

       partial summary judgment as an improper repetitive motion under Trial Rule

       53.4. Techna-Fit maintains that this constitutes reversible error because, had

       the trial court granted its motion for summary judgment on the Lanham Act

       violation claim, the outcome of the trial on the other claims would have been

       different. In particular, Techna-Fit asserts that, if it “could have informed the

       advisory jury that the court had determined that Techna-Fit’s complaint against

       FTP was justified, FTP’s bullying argument would have been cast in an entirely

       different light.” Appellants’ App. at 21.




       7
           The advisory jury found in favor of Trotter on FTP’s claim alleging defamation and deception.


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                      Page 11 of 36
[16]   Trial Rule 53.4 provides in relevant part that


               [n]o hearing shall be required upon a repetitive motion or upon
               motions to reconsider orders or rulings upon a motion. Such a
               motion by any party or the court or such action to reconsider by
               the court shall not delay the trial or any proceedings in the case,
               or extend the time for any further required or permitted action,
               motion, or proceedings under these rules.


[17]   Appellate courts have repeatedly held that this rule is designed to prevent delay

       through the filing of repetitive motions. Stephens v. Irvin, 734 N.E.2d 1133, 1134

       (Ind. Ct. App. 2000), trans. denied. In its motion to deny Techna-Fit’s motion

       for partial summary judgment, FTP did not allege that the motion would cause

       delay. FTP merely alleged that the motion was repetitive of Techna-Fit’s

       response to FTP’s earlier motion for partial summary judgment, and the trial

       court denied the motion under Trial Rule 53.4. Notably, on appeal, FTP does

       not cite to any case law in support of its contention that Techna-Fit’s motion for

       partial summary judgment was properly denied as repetitive.


[18]   Assuming, without deciding, that the trial court erred when it refused to

       consider Techna-Fit’s motion for partial summary judgment as an improper

       repetitive motion, Techna-Fit has not demonstrated reversible error. Our

       supreme court has set out the applicable standard of review on summary

       judgment as follows:

               When a trial court’s ruling granting or denying summary
               judgment is challenged on appeal, the procedure and standard
               under Indiana law is clear. Our standard of review is the same as
               it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 12 of 36
               2010). 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). Summary judgment is improper if the moving party fails
               to carry its burden, but if it succeeds, then the non-moving party
               must come forward with evidence establishing the existence of a
               genuine issue of material fact. Id. We construe all factual
               inferences in favor of the non-moving party and resolve all
               doubts as to the existence of a material issue against the moving
               party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a
               challenged trial court summary judgment ruling is limited to the
               designated evidence before the trial court, see Ind. Trial Rule
               56(H), but is constrained to neither the claims and arguments
               presented at trial nor the rationale of the trial court ruling,
               see Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784,
               790 (Ind. 2012) (“We will reverse if the law has been incorrectly
               applied to the facts. Otherwise, we will affirm a grant of
               summary judgment upon any theory supported by evidence in
               the record.”); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind.
               2009) (“[W]e are not limited to reviewing the trial court’s reasons
               for granting or denying summary judgment but rather we may
               affirm a grant of summary judgment upon any theory supported
               by the evidence.”).


       Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).


[19]   This court has explained the Lanham Act as follows:


               Trademark law is rooted in English common law, and was
               “largely codified” at the federal level in the Trademark Act of
               1946, commonly known as the Lanham Act. Moseley v. Secret
               Catalogue, Inc., 537 U.S. 418, 428 (2003). The Lanham Act defines
               a trademark, in relevant part, as “any word, name, symbol, or
               device, or any combination thereof . . . used by a person . . . to
               identify and distinguish his or her goods, including a unique
               product, from those manufactured or sold by others and to
       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 13 of 36
               indicate the source of the goods, even if that source is unknown.”
               15 U.S.C.A. § 1127. . . . The Lanham Act provides the holder of a
               mark with a cause of action against infringers. 15 U.S.C.A. §
               1125(a). The plaintiff must prove two elements in order prevail on a
               claim of trademark infringement under the Lanham Act: (1) that he or she
               has a protectable ownership interest in the mark, and (2) that the
               defendant’s use of the mark is likely to cause consumer confusion.
               Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225 (5th Cir.
               2010); see also Tana v. Dantanna’s, 611 F.3d 767 (11th Cir. 2010).

       Serenity Springs v. The LaPorte Cnty. Convention and Visitors Bureau, 986 N.E.2d 314,

       320-21 (Ind. Ct. App. 2013) (emphasis added). Further, in Inwood Laboratories,

       Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853-54 (1982), the United States

       Supreme Court held that


               liability for trademark infringement can extend beyond those who
               actually mislabel goods with the mark of another. Even if a
               manufacturer does not directly control others in the chain of
               distribution, it can be held responsible for their infringing activities
               under certain circumstances. Thus, if a manufacturer or
               distributor intentionally induces another to infringe a trademark,
               or if it continues to supply its product to one whom it knows or has reason
               to know is engaging in trademark infringement, the manufacturer or
               distributor is contributorially responsible for any harm done as a
               result of the deceit.

       (Emphasis added).


[20]   In support of its motion for summary judgment on its Lanham Act claim,

       Techna-Fit argued that FTP knew or should have known that TH Motorsports

       was engaged in trademark infringement and FTP is, therefore, contributorially




       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015     Page 14 of 36
       responsible for damages to Techna-Fit under the Lanham Act.8 In support of

       that contention, Techna-Fit designated evidence that FTP was filling purchase

       orders from TH Motorsports that included Techna-Fit parts numbers and, in

       some cases, identified the parts as Techna-Fit parts. Techna-Fit also designated

       evidence showing that some of its customers were confused by FTP’s use of

       Techna-Fit’s parts-numbering system and that Techna-Fit had informed FTP of

       that confusion.


[21]   On appeal, Techna-Fit contends, in effect, that the designated evidence supports

       only one inference and legal conclusion, namely, that FTP violated the Lanham

       Act. Techna-Fit reasons that FTP’s continued use of the Techna-Fit trademark

       and parts-numbering system was not only likely to cause customer confusion

       but caused actual confusion among customers, which establishes FTP’s liability

       under the Lanham Act as a matter of law.


[22]   We agree with Techna-Fit that it satisfied its burden as the summary judgment

       movant to make a prima facie case that there were no genuine issues of material

       fact. But that is not the end of our inquiry. Manley, 992 N.E.2d at 673. Once

       Techna-Fit met its burden as summary judgment movant, the burden then

       shifted to FTP to designate evidence establishing the existence of a genuine

       issue of material fact. Id. However, because the trial court denied Techna-Fit’s




       8
         On appeal, the parties focus on the customer confusion issue and do not address the issue of whether
       Techna-Fit has a protectable ownership interest in its parts-numbering system.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                     Page 15 of 36
       summary judgment motion as repetitive one week after the motion was filed,

       FTP was denied an opportunity to respond to the motion.


[23]   Nonetheless, Techna-Fit contends that it is entitled to summary judgment

       because “FTP chose not to designate any evidence in opposition” to the

       motion. Appellants’ Br. at 20. That argument is not well taken. It is well-

       settled that a trial court is not required to grant an unopposed motion for

       summary judgment. See, e.g., Murphy v. Curtis, 930 N.E.2d 1228, 1233 (Ind. Ct.

       App. 2010), trans. denied. And, more importantly, had the trial court not denied

       Techna-Fit’s summary judgment motion as repetitive, FTP would have filed a

       response.9 Techna-Fit contends that, if we were to reverse the trial court’s

       denial of Techna-Fit’s summary judgment motion, the appropriate remedy

       would be entry of summary judgment in its favor. But the appropriate remedy

       would be a remand to provide FTP an opportunity to respond to the motion.

       See Ind. Trial Rule 56(C) (providing that the nonmovant “shall have thirty (30)

       days after service of the [summary judgment] motion to serve a response and

       any opposing affidavits”).


[24]   We decline to remand for such proceedings. Techna-Fit’s burden as the

       appellant is to demonstrate that the probable impact of the trial court’s alleged




       9
         Again, FTP asked the trial court to make a prompt ruling on its Trial Rule 53.4 motion to deny Techna-
       Fit’s summary judgment motion in order “to avoid any lapse in FTP’s right to respond to the motion and to
       designate materials in response[.]” Appellants’ App. at 1309. The trial court denied Techna-Fit’s summary
       judgment motion as repetitive one week after it was filed. Had the trial court denied FTP’s Trial Rule 53.4
       motion, FTP would have had three weeks to submit a response to the summary judgment motion.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                     Page 16 of 36
       error in denying its summary judgment motion as repetitive affected Techna-

       Fit’s substantial rights. Ind. Appellate Rule 66(A). We are not persuaded that

       Techna-Fit has met that burden for two reasons. First, in its brief on appeal

       Techna-Fit does not address the fact that FTP presented evidence at trial

       sufficient to defeat the Lanham Act claim. If we were to reverse the trial court’s

       judgment in favor of FTP and reinstate Techna-Fit’s summary judgment

       motion, FTP would have thirty days to respond and it would, we presume,

       designate the same evidence that it used to prevail on the merits at trial.

       Techna-Fit makes no contention that it would be entitled to summary judgment

       in that circumstance. See App. R. 46(A)(8)(a).


[25]   Second, we are not persuaded that, had Techna-Fit prevailed on its Lanham

       Act claim on summary judgment, FTP’s “bullying argument” at trial would

       have been undermined such that the outcome of the trial would have been

       different. Appellants’ Br. at 21. In support of that contention, Techna-Fit

       directs us to seven pages of the more than 800-page transcript. Those pages

       include references to Trotter being a “bully,” but, contrary to Techna-Fit’s

       assertion, only one of the cited pages, page 123, includes a suggestion that

       Trotter was a bully because he pursued the Lanham Act claim against FTP.

       Rather, FTP’s lawyer supported his description of Trotter as a bully with

       allegations that Trotter: had taken customers away from FTP; had signed a tax

       return as president of FTP when he was not the president of FTP; had lied to

       FTP customers and told them that FTP was shutting down; had poached an

       FTP employee; and had “tak[en] advantage of his relationship [with Lang] to


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 17 of 36
       run [Lang] into the ground.” Tr. at 785. In other words, FTP made a number

       of claims against Trotter to support its characterization of Trotter as a bully, the

       least of which was a brief reference to Techna-Fit’s pursuit of the Lanham Act

       claim. As such, any error in proceeding to trial on this issue was not an error

       that affected Techna-Fit’s substantial rights.


[26]   Again, Techna-Fit’s sole contention on appeal is that it was entitled to

       summary judgment simply because FTP failed to file any response to the

       motion. Given the evidence FTP presented at trial in its defense against the

       Lanham Act claim, which led the advisory jury and trial court to find in favor

       of FTP on that claim, Techna-Fit cannot show that it would be entitled to

       summary judgment if that same evidence were designated in opposition to its

       motion. Moreover, given the minor emphasis FTP gave to the Lanham Act

       claim in support of the “bully” argument at trial, Techna-Fit cannot

       demonstrate that any error affected its substantial rights.


[27]   The procedural posture of this case is unique. Techna-Fit does not allege that

       the trial court erred when it denied its summary judgment motion on the merits

       under Trial Rule 56 but, rather, that the court erred when it denied the motion

       as repetitive under Trial Rule 53.4. We hold that, under these circumstances,

       where FTP was denied the opportunity to file a response to the summary

       judgment motion, Techna-Fit’s Lanham Act claim was ultimately tried on the

       merits, and the advisory jury and trial court found in favor of FTP on that

       claim, Techna-Fit cannot show that the probable impact of any error in the trial



       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 18 of 36
       court’s denial of the summary judgment motion as repetitive affected Techna-

       Fit’s substantial rights. App. R. 66(A).


                                       Issue Two: Excluded Evidence

[28]   Techna-Fit contends that the trial court abused its discretion when it excluded

       from evidence email exchanges between the parties’ attorneys. At trial,

       Techna-Fit sought to admit into evidence emails between Techna-Fit’s and

       FTP’s attorneys leading up to the instant lawsuit. FTP objected to the

       admission of those emails alleging that they should be excluded under the

       attorney-client privilege, and the trial court sustained that objection. Our

       standard of review of a trial court’s exclusion of evidence is an abuse of

       discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A

       trial court abuses its discretion only if its decision is clearly against the logic and

       effect of the facts and circumstances before the court. Id.


[29]   Indiana Code Section 34-46-3-1 provides in relevant part that, except as

       otherwise provided by statute, attorneys shall not be required to testify as to

       confidential communications made to them in the course of their professional

       business, or as to advice given in such cases. To invoke the attorney-client

       privilege, the invoking party must establish by a preponderance of the evidence

       (i) the existence of an attorney-client relationship and (ii) that a confidential

       communication was involved. TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985,

       995 (Ind. 2014). Minimally, meeting this burden entails establishing that the

       communication at issue occurred in the course of an effort to obtain legal


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 19 of 36
       advice or aid, on the subject of the client’s rights or liabilities, from a

       professional legal advisor acting in his or her capacity as such. Id. at 995-96.


[30]   On appeal, FTP concedes that “the emails themselves are not privileged.”

       Appellee’s Br. at 12. We agree, and the trial court erred when it excluded the

       emails from evidence on the basis of attorney-client privilege. However, even if

       an evidentiary decision was an abuse of discretion, we will not reverse if the

       ruling constituted harmless error. Spaulding v. Harris, 914 N.E.2d 820, 829-30

       (Ind. Ct. App. 2009), trans. denied. An error is harmless when the probable

       impact of the erroneously admitted or excluded evidence on the factfinder, in

       light of all the evidence presented, is sufficiently minor so as not to affect a

       party’s substantial rights. Crider v. Crider, 15 N.E.3d 1042, 1061 (Ind. Ct. App.

       2014), trans. denied; Ind. Trial Rule 61.


[31]   Here, the parties stipulated to certain facts, including the following facts

       relevant to the contents of some of the excluded emails:

               In September 2012, Techna-Fit, through its attorney, contacted
               FTP’s attorney regarding FTP’s continued use of the same part
               numbers Techna-Fit had been using since 1999. Techna-Fit
               argued to FTP’s attorney that FTP’s use of these part numbers
               was unfair competition under Indiana Law and suggested that
               FTP develop a new and different line of part numbers in order to
               avoid a depressing [sic] legal issue[.]


       Appellants’ App. at 1353. Still, on appeal, Techna-Fit contends that the

       exclusion of the emails, which spanned several months during 2012 and 2013,

       prejudiced Techna-Fit “by allowing FTP to paint them as unreasonable in

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015    Page 20 of 36
       bringing suit.” Appellants’ Br. at 26. Techna-Fit maintains that “the emails

       uniquely prove that it was FTP’s failure to describe its new parts-numbering

       system that triggered the filing of Techna-Fit’s suit and not an unwillingness to

       work out a solution short of a suit.”10 Reply Br. at 15.


[32]   In support of its assertion that FTP “paint[ed] Techna-Fit] as unreasonable in

       bringing suit,” Techna-Fit directs us to four pages of the transcript. Appellants’

       Br. at 26. But our review of those four pages reveals that on only two of those

       pages, of the more than 800-page trial transcript, did FTP criticize Techna-Fit’s

       motives in bringing the instant lawsuit. In opening and closing arguments, FTP

       briefly mentioned the suit along with numerous other contentions. But contrary

       to Techna-Fit’s contention on appeal, the suit was not the centerpiece of FTP’s

       arguments. When FTP’s argument that Techna-Fit was unreasonable in

       bringing suit is considered together with the evidence at trial of Techna-Fit’s

       other behavior leading up to the filing, we cannot say that the exclusion of the

       emails affected Techna-Fit’s substantial rights and was reversible error. In light

       of all the evidence, any error was harmless. Crider, 15 N.E. 3d at1061 (error

       harmless where probable impact in light of all the evidence is sufficiently minor

       as not to affect the substantial rights of the parties); Appellate Rule 66(A).




       10
          After months of email exchanges discussing the issue, FTP implemented its new parts-numbering system
       on February 1, 2013. Apparently, Techna-Fit did not think that FTP had adequately explained its new
       system, and Techna-Fit filed its complaint on February 7.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                 Page 21 of 36
                                        Issue Three: Jury Instruction

[33]   Techna-Fit next contends that the trial court abused its discretion when it

       refused a proffered jury instruction which read as follows:


               In Indiana, statements made in the course of a judicial
               proceeding are absolutely privileged and cannot be the basis of a
               claim so long as they are relevant and pertinent to the litigation
               and bear some relation to the litigation.[] [Chrysler Motors Corp. v.
               Graham, 631 N.E.2d 7, 9 (Ind. Ct. App. 1994).] The only
               exception to this rule is where a statement is so palpably
               irrelevant to the subject matter of the controversy that no
               reasonable man can doubt its irrelevancy and impropriety.[] [Id.]


       Appellants’ App. at 1357.2. Techna-Fit maintains that it was “fundamentally

       prejudiced by the refusal to give the instruction.” Appellants’ Br. at 33. In

       particular,


               FTP’s consistent theory of the case was that the filing of the
               lawsuit was the basis for Techna-Fit and Trotter’s liability.
               Without an instruction telling the jury that statements made in
               the course of an Indiana judicial proceeding are absolutely
               privileged and cannot be the basis of a claim, the “potential
               impact” on the jury’s findings was “apparent.”


       Id. at 33-34 (citation omitted).


[34]   FTP responds that, because the jury was only advisory and the trial court was

       not bound, in any way, by its verdict, any abuse of discretion related to jury

       instructions cannot be the basis for reversible error. See, e.g., Brundage v.

       Deschler, 131 Ind. 174, 29 N.E. 921, 921 (1892). We agree. Indeed, where a


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 22 of 36
       bench trial is held, we presume the trial judge is aware of and knows the law

       and considers only evidence properly before him in reaching a decision. Conley

       v. State, 972 N.E.2d 864, 873 (Ind. 2012). We hold that Techna-Fit has not

       demonstrated reversible error because of the refused jury instruction.


                                         Issue Four: Mutual Release

[35]   Techna-Fit and FTP agree that “a condition precedent to [FTP’s] claims is a

       finding that the Mutual Release agreement was breached.” Appellee’s Br. at

       15; Reply Br. at 17. And, on appeal, Techna-Fit contends that the terms of the

       Mutual Release preclude FTP’s breach of contract claims against Techna-Fit

       and Trotter and breach of fiduciary duty claim against Trotter. The Mutual

       Release provides in relevant part that “nothing herein shall prevent a Party . . .

       from engaging in legitimate competition with the other Party.” Reply Br. at 17

       (citing Ex. 1522). Techna-Fit insists that it did not breach the Mutual Release

       because its actions “fall within the meaning of ‘legitimate competition,’ a term

       not further defined in the Release.” Id.


[36]   Techna-Fit maintains that this court should review de novo the question of

       whether Techna-Fit breached the Mutual Release. In essence, Techna-Fit asks

       us to conclude that all of its conduct after Techna-Fit and FTP parted ways was

       “legitimate competition.” Our standard of review for interpreting a contract is

       de novo. Gerstbauer v. Styers, 898 N.E.2d 369, 379 (Ind. Ct. App. 2008). The

       goal of contract interpretation is to ascertain and enforce the parties’ intent as

       manifested in their contracts. See Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct.

       App. 2004), trans. denied. To that end, we construe a contract as a whole and
       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 23 of 36
       consider all of the provisions of the contract, not just individual words, phrases,

       or paragraphs. See id. When a contract is clear and unambiguous, the language

       must be given its plain meaning. See, e.g., Tippecanoe Valley Sch. Corp. v. Landis,

       698 N.E.2d 1218, 1221 (Ind. Ct. App. 1998), trans. denied.


[37]   Techna-Fit does not contend that the Mutual Release is ambiguous. Again,

       Techna-Fit merely argues that it engaged in legitimate competition.

       Competition is defined as “[t]he struggle for commercial advantage; the effort

       or action of two or more commercial interests to obtain the same business from

       third parties.” Black’s Law Dictionary 344 (10th ed. 2014). And legitimate is

       defined as “conforming to recognized principles or accepted rules and

       standards[.]” Webster’s Third New Int’l Dictionary 1291 (2002). We cannot

       say as a matter of law that Techna-Fit engaged only in legitimate competition.

       Instead, we hold that whether Techna-Fit engaged in legitimate competition is a

       question of fact that was resolved by the trial court at trial. See, e.g., Rogier v.

       American Testing and Eng’g Corp., 734 N.E.2d 606, 621 (Ind. Ct. App. 2000)

       (noting whether party has breached contract is a question of fact for factfinder),

       trans. denied.


[38]   The trial court entered a general judgment. Thus, without reweighing the

       evidence or considering witness credibility, we will affirm the trial court if the

       judgment is sustainable upon any theory consistent with the evidence. Perdue

       Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997). At trial, FTP presented

       evidence in support of its claim that Techna-Fit’s conduct did not constitute

       legitimate competition, including: shortly after Techna-Fit and FTP began to

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 24 of 36
       compete against one another in 2012, Techna-Fit filled orders that had been

       directed to FTP but received by Techna-Fit; Techna-Fit copied and sold

       product designs belonging to an FTP customer without permission; and

       Techna-Fit filled orders requesting parts identified with FTP’s new parts-

       numbering system. The evidence and inferences to be drawn therefrom support

       the trial court’s factual determination and conclusion that Techna-Fit did not

       merely engage in legitimate competition but breached the Mutual Release.

       Techna-Fit’s contention on appeal amounts to a request that we reweigh the

       evidence, which we will not do.


                                       Issue Five: Punitive Damages

[39]   Techna-Fit next contends that the trial court erred when it awarded $1,500,000

       in punitive damages to FTP. Indiana Code Section 34-51-3-4 provides that a

       punitive damages award may not be more than the greater of: (1) three (3)

       times the amount of compensatory damages awarded in the action; or (2) fifty

       thousand dollars ($50,000). No Indiana court has interpreted the meaning of

       “the amount of compensatory damages awarded in the action.” FTP asks that

       we interpret the statute to mean that punitive damages are limited only by the

       total compensatory damages awarded in the action on all claims. Thus, here,

       where the trial court entered judgment against Techna-Fit and Trotter for

       breach of contract and against Trotter for breach of fiduciary duty in the

       aggregate amount of $787,901.86, FTP maintains that the $1,500,000 award is

       less than three times the amount of the total compensatory damages award and,

       thus, within the statutory cap. Techna-Fit, on the other hand, urges us to read

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 25 of 36
       the statute to limit punitive damages to three times the compensatory damages

       awarded for Trotter’s breach of fiduciary duty.


[40]   We interpret “the amount of compensatory damages awarded in the action”

       under Indiana Code Section 34-51-3-4 to mean the amount of compensatory

       damages awarded for the claim or claims for which punitive damages were

       requested in a party’s pleadings or, if not requested in the pleadings, tried by

       consent. In SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d

       758, 770 (Ind. Ct. App. 2011), we considered the propriety of a punitive

       damages award where the trial court awarded punitive damages on the

       plaintiff’s breach of fiduciary duty claim, but the plaintiff had not requested

       punitive damages on that claim, and the plaintiff had stated during trial that it

       was seeking punitive damages only on its tortious interference with a contract

       claim. On appeal, we held as follows:


               [T]he Appellants argue that the trial court erred in awarding
               Empire punitive damages on the breach of fiduciary duty claim
               where Empire did not request punitive damages on this claim and
               stated during trial that the only punitive damages claim it was
               seeking was for tortious interference with a contract. Specifically,
               at trial, Empire’s counsel told the court that, “Just to make it clear,
               the punitive damages claim is the assertion that Mr. Johnson, Mr.
               Salwolke and SJS tortiously interfered with the contract of Bill
               Sale.” Transcript at 1569. The trial court entered judgment in
               favor of the Appellants “on Empire’s claims for wrongful
               interference with business relationships.” Appellants’ Appendix at
               97.

               We addressed a similar issue in 1st Source Bank v. Rea, 559 N.E.2d
               381 (Ind. Ct. App. 1990), trans. denied, where the bank challenged

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 26 of 36
               the trial court’s award of punitive damages. We reversed, noting
               that the plaintiffs had not requested punitive damages in their
               counterclaim and that the trial court had not granted a motion to
               amend the pleadings to conform to the evidence. Id. at 388-89.
               See also Ind. Trial Rule 15(B) (“When issues not raised by the
               pleadings are tried by express or implied consent of the parties,
               they shall be treated in all respects as if they had been raised in the
               pleadings.”).

               Similarly, here, the complaint did not contain a request for
               punitive damages on the breach of fiduciary duty claim, and no
               request for punitive damages was made at trial on this claim.
               Rather, Empire’s counsel specifically stated that the request for
               punitive damages was on the tortious interference with a contract
               claim, and judgment was entered in Appellants’ favor on this
               claim. Further, the trial court did not grant a motion to amend the
               pleadings to conform to the evidence, and given that Empire’s
               counsel made clear that the punitive damages claim was “the
               assertion that Mr. Johnson, Mr. Salwolke and SJS tortiously
               interfered with the contract of Bill Sale,” we cannot find that this
               issue was raised by consent of the parties per Indiana Trial Rule
               15(B). Transcript at 1569. Here, as in 1st Source Bank, the trial
               court erred in awarding punitive damages on the breach of
               fiduciary duty claim. We therefore reverse the award of punitive
               damages.

       Id.


[41]   Likewise, here, in its counterclaim and third-party complaint, FTP did not

       request punitive damages for its breach of contract claims against Techna-Fit




       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 27 of 36
       and Trotter. Both in the pleadings and at trial, FTP requested punitive11

       damages only for its breach of fiduciary duty and defamation and deception

       claims against Trotter.12 And the advisory jury was instructed accordingly.

       There is no indication that this issue was tried by consent of the parties under

       Indiana Trial Rule 15(B). See SJS Refractory Co., 952 N.E.2d at 770. And in its

       verdict, the advisory jury awarded punitive damages only for Trotter’s breach of

       fiduciary duty.13 Thus, FTP is only entitled to, and was awarded, punitive

       damages on its breach of fiduciary duty claim.


[42]   Still, FTP contends that the statutory cap should be based upon the aggregate

       amount of compensatory damages awarded on both the breach of contract and

       breach of fiduciary duty claims. But because FTP is only entitled to punitive

       damages for the breach of fiduciary duty, it follows that only those

       compensatory damages which are the predicate for the punitive damages claim

       can be used to calculate the statutory cap. Otherwise, the statutory cap on the

       punitive damages award would be based in part on claims for which FTP did

       not seek punitive damages, contrary to the rule in SJS Refractory that punitive




       11
            FTP requested “treble” damages for its defamation and deception claims. Appellants’ App. at 54-55.
       12
          On appeal, FTP contends that Techna-Fit’s “entire course of conduct” constituted an “independent tort”
       that entitles FTP to punitive damages on its breach of contract claim against Techna-Fit. In support of that
       contention, FTP cites Miller Brewing Co. v. Best Beers of Bloomington, Inc., 608 N.E.2d 975, 981 (Ind. 1993).
       But, again, no such claim for punitive damages against Techna-Fit was pleaded or litigated, and we need not
       address that contention. See SJS Refractory Co., 952 N.E.2d at 770.
       13
          We note that Trotter’s breach of fiduciary duty occurred while he was part-owner of FTP, and the breach
       of contract occurred after the Mutual Release was executed. In other words, the factual bases for the
       breaches are unrelated.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                      Page 28 of 36
       damages must arise from the underlying claim for which those damages are

       sought.


[43]   As discussed above, FTP sought punitive damages only on its breach of

       fiduciary duty claim against Trotter, and, thus, as a matter of pleading and

       practice, punitive damages are limited to a multiple of the compensatory

       damages awarded on the breach of fiduciary duty claim. SJS Refractory, 952

       N.E.2d at 770. But our holding is also consistent with our legislature’s

       unambiguous intent to limit the magnitude of punitive damages. See Andrews v.

       Mor/Ryde Int’l, Inc., 10 N.E.3d 502, 504-05 (Ind. 2014) (describing “sweeping

       limitations” on punitive damages enacted in 1995 to discourage and limit

       punitive damages awards). The cardinal rule of statutory construction is to

       determine and give effect to the intent of the legislature. See McCabe v. Comm’r,

       Ind. Dep’t of Ins., 949 N.E.2d 816, 819 (Ind. 2011). In order to effectuate that

       intent, there must be a nexus between the compensatory damages award and

       the statutory punitive damages cap. To include both the underlying and the

       unrelated compensatory damages in the calculation of the statutory cap would

       expand rather than limit punitive damages, contrary to the clear legislative

       intent.


[44]   We hold that FTP is not entitled to punitive damages on its breach of contract

       claims and that the punitive damages award is limited to three times the

       compensatory damages awarded for Trotter’s breach of fiduciary duty. I.C. §

       34-51-3-4. Because FTP was awarded $125,000 for his breach of fiduciary duty,



       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 29 of 36
       we reverse the punitive damages award and order Trotter to pay punitive

       damages in the amount of $375,000.14


                                          Issue Six: Attorney’s Fees

[45]   Finally, Techna-Fit contends that the trial court abused its discretion when it

       awarded FTP $146,661.43 in attorney’s fees. The award or denial of attorney’s

       fees is “in the exercise of a sound discretion, and in the absence of an

       affirmative showing of error or abuse of discretion we must affirm [the trial

       court’s] order.” Malachowski v. Bank One, Indpls., N.A., 682 N.E.2d 530, 533

       (Ind. 1997) (quoting Zaring v. Zaring, 219 Ind. 514, 39 N.E.2d 734, 737 (1942)).

       Indiana adheres to the American rule that, in general, a party must pay his own

       attorney’s fees absent an agreement between the parties, a statute, or other rule

       to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458

       (Ind. 2012).


[46]   The Mutual Release does not include a fee-shifting clause. Still, FTP contends

       that it is entitled to attorney’s fees as consequential damages because such fees

       were foreseeable in light of Techna-Fit and Trotter’s breach of the contract. In

       support of that contention, FTP cites Tolliver v. Mathas, 538 N.E.2d 971, 977

       (Ind. Ct. App. 1989), trans. denied, where we held that, “[i]n a breach of contract

       action, damages are recoverable which directly and naturally flow from the




       14
         To the extent Techna-Fit contends that both the compensatory damages award and the punitive damages
       award were based on speculation, that contention amounts to a request that we reweigh the evidence, which
       we will not do.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                   Page 30 of 36
breach or wrongful conduct.” But this court has subsequently rejected the

Tolliver holding. In Thor Electric, Inc. v. Oberle & Associates, Inc., 741 N.E.2d 373,

382-83 (Ind. Ct. App. 2000), disapproved on other grounds by Inman v. State Farm

Mut. Auto Ins. Co., 981 N.E.2d 1202, 1205 (Ind. 2012), where the trial court had

awarded attorney’s fees for a breach of contract, we stated as follows:


        The Tolliver court held that the trial court properly admitted
        evidence of attorney fees incurred in a breach of contract action.
        In so doing, the Tolliver court stated that legal expenses were a
        reasonably foreseeable cost resulting from the breach and thus
        were recoverable as consequential damages. However, this
        conclusion is against the weight of authority in Indiana.

        Our courts have repeatedly and overwhelmingly held that
        attorney fees are not recoverable absent an agreement, statute, or
        rule. See Indiana Ins. Co. v. Plummer Power Mower & Tool Rental,
        Inc., 590 N.E.2d 1085, 1093 (Ind. Ct. App. 1992) (concluding
        that attorney fees are not recoverable as consequential damages
        in a breach of contract action despite the argument that such fees
        flow naturally from the breach and are reasonably foreseeable);
        see also Kikkert v. Krumm, 474 N.E.2d 503, 504-05 (Ind. 1985)
        (stating that “[t]he general rule requires each party to the
        litigation to pay his own attorney fees. Attorney fees are not
        allowable in the absence of a statute, or in the absence of some
        agreement or stipulation specially authorizing thereof[.]”);
        Trotcky v. Van Sickle, 227 Ind. 441, 445, 85 N.E.2d 638, 640
        (1949) (“‘Attorney’s fees are not allowable in the absence of a
        statute, or in the absence of some agreement or stipulation
        specially authorizing the allowance thereof; and it has been held
        that the rule applies equally in courts of law and in courts of
        equity.’” (citation omitted)); Depeyster v. Town of Santa Claus, 729
        N.E.2d 183, 190 (Ind. Ct. App. 2000) (stating that “Indiana
        adheres to the American Rule, which requires parties in most
        instances to pay their own attorney fees absent a statute, rule, or

Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 31 of 36
                  agreement to the contrary”); . . . Shumate v. Lycan, 675 N.E.2d
                  749, 754 (Ind. Ct. App. 1997) (concluding that “attorney fees and
                  costs should not be awarded for the breach of an agreement not
                  to sue unless the agreement expressly provides for that remedy,
                  or such an award is permitted by statute or court rule”), trans.
                  denied; Kokomo Med. Arts Bldg. P’ship v. William Hutchens &
                  Assocs., 566 N.E.2d 1093, 1096 (Ind. Ct. App. 1991) (holding that,
                  despite appellee’s argument that attorney fees were consequential
                  damages, in the absence of a contract provision or applicable statute, the
                  award of attorney fees was error). Thor fails to cite to a contract
                  provision or applicable statute authorizing the award of attorney
                  fees, and our review of the record and existing law reveals none.
                  Therefore, we conclude that the trial court erred in awarding
                  attorney fees to Thor.[15]


       (Emphasis added). We agree that the holding in Tolliver is an outlier and

       against the weight of authority in Indiana, and we hold that FTP is not entitled

       to attorney’s fees for Techna-Fit and Trotter’s breach of contract.


[47]   Still, FTP contends that it is entitled to attorney’s fees under Indiana Code

       Section 34-52-1-1(b) because of the evidence of Techna-Fit and Trotter’s “bad




       15
            In a footnote, the Thor court stated further:

                  While we recognize, strictly speaking, that attorney fees would be a foreseeable cost arising
                  naturally and directly out of the breach, we may not ignore the clear precedent of our
                  supreme court. See Indiana Ins. Co., 590 N.E.2d at 1093. Indeed, in entering a contract, a
                  party may negotiate for recovery of attorney fees in the event of breach. Thus, we see no
                  need to expand the scope of consequential damages to cover such costs when neither the
                  contract nor existing law provides recovery.

       741 N.E.2d at 383 n.6.



       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                         Page 32 of 36
       faith in trying to put [FTP] out of business.” Tr. at 807. Indiana Code Section

       34-52-1-1(b) provides as follows:


               In any civil action, the court may award attorney’s fees as part of
               the cost to the prevailing party, if the court finds that either party:

                        (1) brought the action or defense on a claim or
                        defense that is frivolous, unreasonable, or groundless;

                        (2) continued to litigate the action or defense after the
                        party’s claim or defense clearly became frivolous,
                        unreasonable, or groundless; or

                        (3) litigated the action in bad faith.


       (Emphasis added). Pursuant to this statute, bad faith is demonstrated where the

       “party presenting the claim is affirmatively operating with furtive design or ill

       will.” SJS Refractory, 952 N.E.2d at 770. Further, “in order to constitute bad

       faith under the statute, the conduct must be ‘vexatious and oppressive in the

       extreme.’ The reason for such a strict standard is that the nature of an

       attorney[’s] fee award under the bad faith exception is punitive[.]” Neu v.

       Gibson, 968 N.E.2d 262, 279 (Ind. Ct. App. 2012) (quoting St. Joseph’s College v.

       Morrison, Inc., 158 Ind. App. 272, 302 N.E.2d 865, 871 (1973)), trans. denied.


[48]   An award under Indiana Code Section 34-52-1-1 is afforded a multistep review.

       SJS Refractory, 952 N.E.2d at 770. First, we review the trial court’s findings of

       fact under a clearly erroneous standard, and then we review the trial court’s

       legal conclusions de novo. Id. Finally, we review the trial court’s decision to


       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015   Page 33 of 36
       award attorney’s fees and the amount thereof under an abuse of discretion

       standard. Id. at 770-71.


[49]   The trial court did not enter findings and conclusions in support of the

       attorney’s fee award. Instead, the court adopted FTP’s “hearing brief” in

       support of its request for attorney’s fees under the bad faith prong of Indiana

       Code Section 34-52-1-1. In that brief, FTP argued in relevant part that it was

       entitled to attorney’s fees because Techna-Fit and Trotter “pursued their action

       with ‘furtive design,’ ‘ill will’ and ‘for oppressive reasons’—namely, trying to

       run [FTP] out of business.” Appellants’ App. at 1368. However, neither in its

       “hearing brief” nor in its brief on appeal did FTP direct us to any evidence in

       the record to support those assertions.16 And, to the extent FTP contends that

       the evidence of Techna-Fit’s conduct leading up to the instant lawsuit bears on

       the question of attorney’s fees under Indiana Code Section 34-52-1-1(b)(3), FTP

       is mistaken. Indiana Code Section 34-52-1-1(b)(3) codifies the common law

       bad faith exception to the American rule. And in Kikkert, our supreme court

       held in relevant part that the common law bad faith exception to the American

       rule does not apply where the “allegedly obdurate behavior occurred before the

       lawsuit was filed.” 474 N.E.2d at 505. Likewise, the statute provides that the

       action must be litigated in bad faith, which means that only conduct in the




       16
          While FTP briefly argued at trial that Trotter was a bully for bringing this lawsuit, FTP does not direct us
       to any evidence to support that argument. And argument is not evidence.



       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                        Page 34 of 36
       course of the litigation is relevant to the question of attorney’s fees. 17 I.C. § 34-

       52-1-1(b)(3); see, e.g., SJS Refractory, 952 N.E.2d at 771 (affirming attorney’s fee

       award where “[d]efendant[s’] litigation strategy was to lie and cover up their

       conduct, and the record and the findings in th[e] case [we]re replete with examples

       of this litigation strategy.”). Without evidence to support the trial court’s

       conclusion that Techna-Fit litigated this action in bad faith, the court’s

       conclusion is clearly erroneous. We hold that the trial court erred when it

       awarded FTP attorney’s fees, and we reverse the attorney’s fee award.


                                                       Conclusion

[50]   Techna-Fit has not demonstrated that it was entitled to summary judgment on

       its Lanham Act claim. The trial court’s exclusion of certain evidence at trial

       was not reversible error. The trial court’s refusal to proffer a proposed

       instruction to the advisory jury was not reversible error. We will not reweigh

       the evidence or reassess the credibility of witnesses with respect to the breach of

       contract claims. The trial court erred when it awarded FTP $1,500,000 in

       punitive damages. We reverse that award and order Trotter to pay $375,000 in

       punitive damages for his breach of fiduciary duty. And the trial court erred

       when it awarded FTP attorney’s fees.18




       17
           Indeed, the statute differentiates between bringing a claim (subsection (b)(1)) and litigating a claim
       (subsection (b)(3)). And FTP makes no contention that Techna-Fit brought the action on a claim that is
       frivolous, unreasonable, or groundless.
       18
          FTP requests appellate attorney’s fees. Because we hold that the trial court erred when it awarded
       $1,500,000 in punitive damages and when it awarded attorney’s fees, we deny FTP’s request.

       Court of Appeals of Indiana | Opinion 32A05-1410-PL-462 | October 14, 2015                        Page 35 of 36
[51]   Affirmed in part and reversed in part.




       Kirsch, J., and Barnes, J., concur.




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