                                                                                       FILED
                                                                               Apr 23 2020, 9:29 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Craig R. Patterson                                          Robert W. Eherenman
      Mark E. Bloom                                               Charles J. Heiny
      Beckman Lawson, LLP                                         Haller & Colvin, P.C.
      Fort Wayne, Indiana                                         Fort Wayne, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Wayne Doug Zollinger,                                       April 23, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-PL-1501
              v.                                                  Appeal from the
                                                                  Allen Superior Court
      Wagner-Meinert Engineering,                                 The Honorable
      LLC,                                                        Stanley Levine, Judge
      Appellee-Plaintiff                                          The Honorable
                                                                  Jennifer L. DeGroote, Judge
                                                                  Trial Court Cause No.
                                                                  02D03-1803-PL-77



      Vaidik, Judge.



                                            Case Summary
[1]   Wagner-Meinert Engineering, LLC, filed suit against its former employee,

      Wayne Doug Zollinger, based on covenants not to compete Zollinger had


      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                                   Page 1 of 27
      agreed to. The trial court entered various rulings in favor of the company, first

      on summary judgment and then after a bench trial. Zollinger now appeals. We

      affirm in all respects and remand for an award of appellate attorney’s fees to

      Wagner-Meinert Engineering, LLC.



                             Facts and Procedural History
[2]   This case arises from Zollinger’s history with a Fort Wayne-based mechanical-

      contracting business that has been operated by various “Wagner-Meinert”

      entities. In 1996, Zollinger became an employee of Wagner-Meinert Inc. He

      eventually became a vice president and part-owner of that corporation. Several

      things changed in September 2011. A newly formed limited-liability company

      called Wagner-Meinert, LLC, bought the assets and business of Wagner-

      Meinert Inc.; Zollinger’s pro-rata portion of the sale proceeds (based on his 12%

      interest in the corporation) “exceeded $1.8 million[.]” Appellant’s App. Vol. II

      p. 187.1 At the same time, Zollinger became Vice President of Operations of

      another newly formed limited-liability company—the plaintiff in this case,

      Wagner-Meinert Engineering, LLC (“WME”)—at a salary of approximately

      $242,000 per year. He also paid $324,000 to acquire a 3.6% interest in WME.


[3]   Zollinger signed three agreements as part of these deals: an Asset Purchase

      Agreement governing the sale of Wagner-Meinert Inc. to Wagner-Meinert,




      1
       The trial court found that Zollinger received “approximately $2,000,000.00.” Appellant’s App. Vol. II p.
      54. WME uses the $1.8 million figure, with no dispute from Zollinger, so we will do the same.

      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                              Page 2 of 27
      LLC; an Operating Agreement as a condition of ownership of WME; and an

      Employment Agreement as a condition of employment with WME. All three

      agreements included non-competition and non-solicitation provisions. The

      provisions at issue here are those in the Operating Agreement and in the

      Employment Agreement.


[4]   Section 14.02 of the Operating Agreement, entitled “Non-Solicitation/Non-

      Competition,” begins:


              Members acknowledge that it is necessary and appropriate for the
              Company to protect its legitimate business interests by restricting
              the Member’s ability to solicit business in competition with the
              Company and that any violation of the covenants would result in
              irreparable injury to the Company’s legitimate business interests.
              The Members agree that the following non-solicitation/non-
              competition covenants are drafted narrowly to safeguard the
              Company’s legitimate business interests.


              The Members agree that during the time a Member is employed
              by the Company and for a period of forty-two (42) months after
              the termination of a Member’s employment relationship with the
              Company, the departing Member shall not engage in the
              following activity unless advance, express written permission has
              been granted by an authorized officer of the Company:


      Appellant’s App. Vol. III p. 57. That introductory language is followed by

      fourteen specific restrictions—subsections (a) through (n). Most relevant here

      are subsections (a) and (b). Subsection (a) provides that members cannot “have

      any ownership interest in, work for, advise, or have any business connection or

      business relationship with any person or entity that competes with” WME. Id.

      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 3 of 27
      at 58. Subsection (b) provides that members cannot “perform, in any capacity,

      activity related to management, product development, product processes and

      techniques, recruiting, sales or administration for any firm or business which is

      engaged in similar businesses as” WME “in the geographic area served by”

      WME. Id.


[5]   Similarly, Section 7(a) of the Employment Agreement provides that Zollinger

      cannot compete with WME for two years following the termination of his

      employment. Id. at 19. “Compete” is defined as “to engage or seek to engage

      in activities the same as or substantially similar to the duties performed by

      [Zollinger] for [WME] during the 24 months preceding the termination of

      [Zollinger’s] employment . . . for a person or entity engaged in a business

      substantially similar to the business of [WME].” Id. The restriction is limited

      to “the same geographic area” Zollinger worked in during his last two years

      with WME. Id.


[6]   In April 2015, the majority member of WME—Ambassador WME, LLC—

      bought out the other members, including Zollinger. Zollinger received

      $1,316,844 for his 3.6% interest, almost $1,000,000 more than his initial

      contribution of $324,000. However, Zollinger and the other selling members

      continued as employees of WME pursuant to Section 8 of the Purchase and

      Sale Agreement, which provides that the sellers “desire to continue their

      employment with the Company,” that “employment shall continue pursuant to

      the written Employment Agreements with Addenda dated September 8, 2011,”

      and that “all rights, duties and obligations of each Seller and the Company

      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020        Page 4 of 27
      under such employment agreements shall survive this Agreement and continue

      as provided in said employment agreements.” Id. at 72. Zollinger also

      remained a member of WME’s Board of Managers. The Purchase and Sale

      Agreement includes an integration clause that provides, in part, “This

      Agreement constitutes the entire agreement between the parties and supersedes

      all prior negotiations, agreements and understandings, oral and written, among

      or between any of the parties hereto with respect to the subject matter hereof.”

      Id. at 73.


[7]   On January 28, 2018, WME terminated Zollinger’s employment for submitting

      false expense reports. Three weeks later, WME sent Zollinger a letter

      reminding him of the restrictions contained in the Operating Agreement and the

      Employment Agreement. Zollinger wrote back, acknowledging the restrictions

      in the Employment Agreement but asserting that his obligations under the

      Operating Agreement ended when Ambassador WME, LLC, bought his

      ownership interest in WME. He also indicated his intent to continue working

      in WME’s “industry,” but without violating the Employment Agreement:


              To be honest, I need to work for 3 or 5 more years and, unless I
              work within our industry, I won’t be paid anywhere near what I
              was paid at Wagner Meinert. As a result, I now have an offer of
              employment in our industry I am considering. I have shown that
              company my Employment Agreement and have told them I will
              comply with the restrictive covenants in it. Candidly, that
              company expects no less of me.




      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 5 of 27
      Appellant’s App. Vol. II p. 162. WME then asked Zollinger to provide the

      details of his new/prospective employment. Zollinger responded, “At this time

      I have several offers and have not made a decision. My conversations have all

      been around mentoring leadership. There is no anticipated conversation with

      any customers.” Id. at 171.


[8]   Ten days after receiving that response, WME filed a declaratory-judgment

      action against Zollinger. WME asked the trial court to declare, among other

      things, that the restrictions in both the Operating Agreement and the

      Employment Agreement are applicable and enforceable. WME moved for

      summary judgment. On November 14, 2018, the trial court issued an order

      granting WME’s motion. The court concluded that the restrictions in the

      Operating Agreement were not extinguished when Zollinger sold his interest in

      WME and that the restrictions in the Operating Agreement and the

      Employment Agreement are reasonable and enforceable. It also ordered

      Zollinger to comply with the restrictions.


[9]   A few weeks after the trial court issued its summary-judgment order, WME

      amended its complaint to add a claim of breach of contract. Whereas the

      original complaint alleged that Zollinger was about to violate the restrictions,

      the amended complaint alleged that he had violated the restrictions.

      Specifically, WME claimed that from July to November of 2018, Zollinger did

      consulting work for Freije-RSC Engineered Solutions Company (“Freije”), a

      Fishers-based competitor of WME. The trial court held a bench trial on April

      11, 2019, and issued its findings of fact and conclusions of law in June 2019.

      Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 6 of 27
       The court concluded that Zollinger’s work for Freije violated the Operating

       Agreement and the Employment Agreement. It did not award WME any

       damages, but it entered an injunction requiring Zollinger to comply with the

       restrictions and ordered Zollinger to pay WME $38,657.23 in attorney’s fees

       and expenses.


[10]   Zollinger now appeals.



                                    Discussion and Decision
[11]   Zollinger challenges several of the trial court’s rulings, both on summary

       judgment and after the bench trial. WME asks us to affirm the trial court in all

       respects and argues that it is entitled to an award of appellate attorney’s fees.2


                                  I. Summary-Judgment Issues
[12]   Zollinger contends that the trial court erred by granting summary judgment to

       WME on the original complaint. We review motions for summary judgment

       de novo, applying the same standard as the trial court. Hughley v. State, 15

       N.E.3d 1000, 1003 (Ind. 2014). That is, “The judgment sought shall be

       rendered forthwith if the designated evidentiary matter shows that there is no




       2
        Indiana Appellate Rule 46 provides that every contention in the argument section of a brief “must be
       supported by citations to . . . the Appendix or parts of the Record on Appeal relied on[.]” The 28-page
       argument section of Zollinger’s opening brief does not include a single citation to the record, and the 44-page
       argument section of WME’s brief includes only a handful. Needless to say, this lack of citations significantly
       hindered our review.

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                                 Page 7 of 27
       genuine issue as to any material fact and that the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C).


                                          A. Integration Clause
[13]   Zollinger first argues that the restrictions in Section 14.02 of the Operating

       Agreement were eliminated by virtue of the integration clause in the 2015

       Purchase and Sale Agreement relating to Ambassador WME, LLC’s buyout of

       the other members of WME. Again, the integration clause provides, in part,

       “This Agreement constitutes the entire agreement between the parties and

       supersedes all prior negotiations, agreements and understandings, oral and

       written, among or between any of the parties hereto with respect to the subject

       matter hereof.” Zollinger asserts that the “subject matter” of the Purchase and

       Sale Agreement includes not only the sale of shares of WME to Ambassador

       WME, LLC, but also his “rights, duties and obligations to WME following the

       sale.” Appellant’s Br. p. 32. He bases this argument on the fact that Section 8

       of the Purchase and Sale Agreement provides that the employment of the

       selling members “shall continue pursuant to the written Employment

       Agreements with Addenda dated September 8, 2011,” and that “all rights,

       duties and obligations of each Seller and the Company under such employment

       agreements shall survive this Agreement and continue as provided in said

       employment agreements.” Zollinger contends that the “plain meaning” of this

       provision “is that following the sale of Zollinger’s shares, all rights, duties, and

       obligations of Zollinger and WME were to be in accordance with Zollinger’s

       Employment Agreement.” Id. at 33. In other words, while Zollinger

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020          Page 8 of 27
       acknowledges that the competition restrictions in his Employment Agreement

       survived the integration clause, he argues that the restrictions in the Operating

       Agreement did not. The trial court rejected this argument, and so do we.


[14]   Section 8 of the Purchase and Sale Agreement does not purport to establish all

       “rights, duties, and obligations of Zollinger and WME” going forward. It

       addresses only “all rights, duties and obligations of each Seller and the

       Company under such employment agreements[.]” (Emphasis added). As the

       trial court explained—in findings not challenged by Zollinger—“Zollinger’s

       obligations under the Employment Agreement were independent of his

       obligations under the Operating Agreement, and he received independent

       consideration for each of the agreements” (under the Employment Agreement,

       a yearly salary over $240,000, and under the Operating Agreement, “the

       benefits of ownership in WME, which ultimately resulted in a $1 million

       profit”). Appellant’s App. Vol. II p. 38. While the Purchase and Sale

       Agreement addresses Zollinger’s obligations under his Employment

       Agreement, it says nothing at all about his independent obligations under

       Section 14.02 of the Operating Agreement. As such, the latter obligations are

       not part of the “subject matter” of the Purchase and Sale Agreement, and the

       trial court properly concluded that those obligations survived the integration

       clause.




       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020          Page 9 of 27
                                             B. Reasonableness
[15]   Next, Zollinger contends that even if the restrictions in the Operating

       Agreement were not eliminated by the integration clause, those restrictions and

       the restrictions in the Employment Agreement are overbroad and therefore

       unenforceable. Covenants not to compete are enforceable if they are

       reasonable. Dicen v. New Sesco, Inc., 839 N.E.2d 684, 687 (Ind. 2005).

       However, the manner in which reasonableness is determined depends on the

       context in which the covenant was established. Id. Covenants in typical

       employment contracts are reviewed under a “skeptical” standard, while

       covenants that arise ancillary to the sale of a business are subject to a more

       liberal standard. Id.


[16]   Here, the trial court determined that the restrictions in the Operating

       Agreement and the Employment Agreement arose ancillary to Zollinger’s sale

       of his interest in Wagner-Meinert Inc., and, applying the more liberal standard,

       found all the restrictions to be reasonable and enforceable. Zollinger argues

       that the trial court erred in applying the more liberal standard, and his

       reasonableness argument follows from that premise. That is, Zollinger’s

       contentions about reasonableness all assume the applicability of the “strict”

       employment standard, rather than the more liberal sale-of-a-business standard.

       See Appellant’s Br. p. 36 (“Applying the strict standard, the restrictions in

       Section 14.02 [of the Operating Agreement] are unreasonable as to time,

       geographic restriction, and the activity to be restricted.”); id. at 51 (citing

       Brunner v. Hand Industries, Inc., 603 N.E.2d 157 (Ind. Ct. App. 1992), a case

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020          Page 10 of 27
       applying the employment standard, in arguing that the activity restriction in the

       Employment Agreement is unreasonable because it “would prevent Zollinger

       from utilizing his general skills and knowledge”); Appellant’s Reply Br. p. 23

       (“Under the strict standard, Zollinger’s activity restriction [under the

       Employment Agreement] is overbroad because it prohibits him from

       performing any activity for a competitor regardless of whether the activity is

       competitive or protects a legitimate business interest.”). Zollinger does not

       argue in the alternative that the restrictions are unreasonable even under the

       more liberal sale-of-a-business standard. Therefore, if we agree with the trial

       court that the more liberal standard applies, Zollinger’s arguments about

       reasonableness will necessarily fail.


[17]   The parties’ arguments about the proper standard to be applied center on our

       Supreme Court’s decision in Dicen. There, Dicen and two other people owned

       an environmental-consulting business called Sesco. Dicen managed one of

       Sesco’s divisions and was involved in marketing, bidding, and training. A

       group of investors incorporated New Sesco, Inc., to purchase the assets of

       Sesco. In exchange for approximately $300,000, Dicen signed a purchase

       agreement that included a non-solicitation covenant. The same day, he signed

       an employment agreement that included a covenant not to compete. Dicen

       later left New Sesco and started a competing business. New Sesco sued and

       won an injunction against Dicen.


[18]   On appeal, Dicen argued that the covenants in the purchase and employment

       agreement were overbroad and unenforceable. Our Supreme Court

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020         Page 11 of 27
       distinguished between covenants entered into “ancillary to the sale of a

       business” and covenants “arising out of an employer-employee relationship,”

       explaining that the former are to be reviewed “on a more liberal basis than the

       skeptical one courts use regarding contracts between employer and employee.”

       Dicen, 839 N.E.2d at 685, 687. The Court cited the rationale stated by a

       Massachusetts court:


               In the former situation there is more likely to be equal bargaining
               power between the parties; the proceeds of the sale generally
               enable the seller to support himself temporarily without the
               immediate practical need to enter into competition with his
               former business; and a seller is usually paid a premium for
               agreeing not to compete with the buyer. Where the sale of the
               business includes good will . . . a broad noncompetition
               agreement may be necessary to assure that the buyer receives that
               which he purchased . . . . On the other hand, an ordinary
               employee typically has only his own labor or skills to sell and
               often is not in a position to bargain with his employer.


       Id. at 687 (quoting Alexander & Alexander, Inc. v. Donahy, 488 N.E.2d 22, 28

       (Mass. App. Ct. 1986)).


[19]   Applying this “more favorable review,” the Court approved the non-solicitation

       covenant in the purchase agreement. Id. at 688. More importantly for our

       purposes, however, the Court found that the covenant not to compete in the

       employment agreement was also subject to the more liberal review. The Court

       explained, “Since this employment covenant not to compete was executed in

       the same business transaction as the sale of a business covenant, and therefore



       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 12 of 27
       the bargaining power was likely equal here as well, we will also engage in a

       more liberal review of its reasonableness.” Id. at 689.


[20]   Regarding the restrictions in the Operating Agreement, Zollinger argues that

       those restrictions were not “ancillary” to his sale of his interest in Wagner-

       Meinert Inc., because he agreed to those restrictions as a condition of

       purchasing an interest in WME, not as a condition of selling his interest in

       Wagner-Meinert Inc. That argument is foreclosed by Dicen. Again, in Dicen,

       our Supreme Court held that the covenant not to compete in the employment

       agreement was subject to the more liberal review because Dicen’s execution of

       that covenant was part of “the same business transaction” as his sale of his

       interest in Sesco. Likewise, here, Zollinger’s execution of the Operating

       Agreement was part of “the same business transaction” as his sale of his interest

       in Wagner-Meinert Inc. As the trial court found, “the Operating Agreement

       was entered into at the same time as the documents related to the sale of

       Wagner-Meinert, Inc. and was otherwise related to the sale of Wagner-Meinert,

       Inc.” Appellant’s App. Vol. II p. 40.


[21]   Zollinger’s execution of the Employment Agreement was also part of the same

       business transaction as his sale of his interest in Wagner-Meinert Inc.

       Nonetheless, Zollinger argues that this case is distinguishable from Dicen. He

       contends that our Supreme Court’s premise regarding the employment

       covenant in Dicen—that “the bargaining power was likely equal” with respect to

       the employment covenant because it was executed in the same business

       transaction as the sale of a business—does not apply here. Zollinger asserts that

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020        Page 13 of 27
       he lacked bargaining power with regard to his Employment Agreement because

       the Asset Purchase Agreement governing the sale of Wagner-Meinert Inc.

       included its own five-year non-compete clause, so “if he wanted to work

       following the sale, he was required to sign the Employment Agreement.”

       Appellant’s Br. p. 47. He says he “was compelled to work for WME.”

       Appellant’s Reply Br. p. 15.


[22]   For several reasons, we reject Zollinger’s claim that he lacked bargaining power

       with respect to the Employment Agreement. He does not dispute the trial

       court’s finding that he is a “sophisticated businessman.” Appellant’s App. Vol.

       II p. 44. Nor does he dispute the trial court’s finding that there were “extensive

       negotiations” surrounding the execution of the September 2011 agreements. Id.

       In addition, Zollinger was paid in excess of $1.8 million for his interest in

       Wagner-Meinert Inc.—at least $600,000 more than the $1.2 million in salary he

       went on to earn in the five years after entering into the Employment Agreement

       (approximately $242,000 per year). As noted in Dicen, such proceeds “generally

       enable the seller to support himself temporarily without the immediate practical

       need to enter into competition with his former business[.]” 839 N.E.2d at 687.

       And by 2011, Zollinger had been with the company for twenty-five years, both

       as an employee and an executive. His experience and institutional knowledge

       alone gave him significant bargaining power.


[23]   Because the Employment Agreement was part of the same business transaction

       as Zollinger’s sale of his interest in Wagner-Meinert Inc., and because Zollinger

       had substantial bargaining power, the trial court properly concluded that the

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 14 of 27
       restrictions in the Employment Agreement should be reviewed under the more

       liberal sale-of-a-business standard. And that conclusion is fatal to Zollinger’s

       arguments about the reasonableness of those restrictions, all of which he makes

       under the strict employment standard.


[24]   We affirm the trial court’s grant of summary judgment to WME.


                                               II. Trial Issues
[25]   Zollinger also contends that even if the trial court properly concluded on

       summary judgment that the restrictions in the Operating Agreement and the

       Employment Agreement are enforceable, it erred by concluding after trial that

       his work for Freije violated the restrictions. He also challenges the trial court’s

       issuance of an injunction and its award of attorney’s fees and expenses to

       WME. We will set aside a trial court’s findings and conclusions only if they are

       clearly erroneous. Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015).

       We will not reweigh the evidence or reassess witness credibility. Id. “Instead,

       we must accept the ultimate facts as stated by the trial court if there is evidence

       to sustain them.” Id.


                                                       A. Breach
[26]   Zollinger asserts that the trial court erred by concluding that his work for Freije

       between July and November of 2018 violated the Operating Agreement and the

       Employment Agreement. He does not dispute the trial court’s finding that

       “Freije and WME are competitors.” Appellant’s App. Vol. II p. 64. Instead,

       he argues that there is no evidence that he shared anything “proprietary,”

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020        Page 15 of 27
       “confidential,” “unique,” or “secret” to WME with Freije. Appellant’s Br. pp.

       41-46.


[27]   The problem with Zollinger’s argument is that none of the restrictions he was

       found to have violated is limited to “proprietary,” “confidential,” “unique,” or

       “secret” information. The trial court found that Zollinger violated Section

       14.02(a) and (b) of the Operating Agreement and Section 7(a) of the

       Employment Agreement. Section 14.02(a) of the Operating Agreement

       provides that Zollinger cannot “have any ownership interest in, work for,

       advise, or have any business connection or business relationship with any

       person or entity that competes with” WME. Section 14.02(b) of the Operating

       Agreement provides that Zollinger cannot “perform, in any capacity, activity

       related to management, product development, product processes and

       techniques, recruiting, sales or administration for any firm or business which is

       engaged in similar businesses as” WME. And Section 7(a) of the Employment

       Agreement provides that Zollinger cannot “engage or seek to engage in

       activities the same as or substantially similar to the duties performed by

       [Zollinger] for [WME] during the 24 months preceding the termination of

       [Zollinger’s] employment . . . for a person or entity engaged in a business

       substantially similar to the business of [WME].”


[28]   The trial court’s conclusion that Zollinger violated these restrictions is

       supported by numerous findings of fact, none of which Zollinger challenges on

       appeal. We quote these findings at length because they make clear the



       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020           Page 16 of 27
similarities between WME’s business and Freije’s business and the overlap of

the work Zollinger performed for the two companies:


               12. WME is a mechanical contractor providing services
        which include plumbing, piping, HVAC, and industrial
        refrigeration.


                                       *        *        *           *


               14. Zollinger’s duties at WME included updating the sell
        rate factors in estimating workbooks based upon market
        conditions; creating career paths for service technicians to
        become service group leaders; recruiting of service technicians
        and group leaders; identifying mergers and targets for mergers;
        assisting remote locations with developing annual budgets;
        helping to secure additional space for a fab shop in Fort Worth;
        helping evaluate and acquire equipment for the Fort Worth fab
        shop; evaluating the work of welders in Fort Worth; assisting
        with the purchase of additional equipment for the compressor
        shop, coach and mentor leaders at remote locations; mentors
        those who would be taking over his position upon retirement;
        and participating in and representing WME with activities
        associated with the Mechanical Contractor[s] Association.


            15. WME maintains fabrication (“fab”) shops in Fort
        Wayne, Fort Worth, and at Kelly Refrigeration.


               16. A fab shop is a light manufacturing facility where raw
        materials and equipment can be used in a contained environment
        to produce products, including things like skid packages. Having
        a fab shop allows a contractor to perform all the work on the skid
        package in a controlled environment and with more tools than
        would be available in the field. Once completed, the skid



Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 17 of 27
        package is loaded on a trailer taken to a job site, where final
        piping and connections are done.


              17. Having a fab shop is a competitive advantage in the
        industry as it [is] more efficient and cost effective to fabricate
        components in a fab shop than on-site.


               18. Having a fab shop is not unusual. In Indiana, there
        are five ammonia refrigeration contractors. Of those five (5)
        contractors, three (3) have fab shops.


                 19. Most mechanical contractors have fab shops.


               20. Freije is a mechanical and industrial refrigeration
        service contractor with its headquarters in Fishers, Indiana.


              21. Freije does not have a fab shop, but has been
        considering building one for approximately ten (10) years.


               22. Freije’s delay in building a fab shop is attributed to
        Freije not having the critical mass of business needed to keep the
        fab shop busy.


                 23. Freije and WME are competitors.


                                       *        *        *           *


                29. While consulting for Freije, Zollinger interviewed
        project managers, superintendents, and estimators regarding their
        jobs, job descriptions and the communications among those three
        positions.




Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020           Page 18 of 27
               30. Zollinger reviewed the points of contact a customer
        goes through to interact with Freije.


               31. Zollinger provided Freije with an overview of the steps
        to start up a fab shop.


              32. Over his career, Zollinger has laid out four (4) fab
        shops to substantial completion and consulted on another.


              33. Zollinger also provided a handwritten sketch of a fab
        shop layout to Rick Aston (“Aston”), a Freije CAD designer,
        who utilized the sketch to create a computer aided drawing of a
        fab shop.


               34. The similarities between the layout of WME’s fab
        shop and Aston’s CAD drawing include work flow and the same
        or similar location of the overhead doors, racking, office,
        restroom, breakroom, valves and fittings, and tool room.


               35. Zollinger assisted Freije with the potential sale of a
        division of Freije. He was the point of contact for those
        interested in buying the division and reached out to two (2)
        companies that he thought might be interested in buying the
        division.


               36. Zollinger assisted Freije in developing career paths
        outlining how an employee can progress by developing skills and
        becoming competent in areas. Career paths were developed for
        field personnel, service technicians, and project managers.


              37. Zollinger created job descriptions for Freije’s project
        managers, superintendents, and estimators to help prevent
        redundancies.


Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020          Page 19 of 27
               38. Over the course of Zollinger’s consulting work for
        Freije, Zollinger reviewed approximately five (5) bids to ensure
        that Freije had included all the necessary costs for materials and
        labor.


                                       *        *        *           *


               40. While performing consulting-services for Freije,
        Zollinger reviewed and recommended equipment for Freije’s
        compressor rebuild shop. Zollinger recommended purchasing a
        balancing machine, a parts washer, and a spray cabinet washer
        for Freije’s compressor rebuild shop.


               41. Zollinger was in the early stages of assisting with
        Freije’s mentoring program that it had in place.


              42. Zollinger suggested that Freije consider utilizing an
        open book for bids as a way to build trust with the customer.
        WME used open book bids in its work.


                43. Prior to Zollinger providing services to Freije, [Freije
        President Mike Webster] created a list of areas with which he
        wanted Zollinger to assist Freije. One of the areas was to review
        if there was a more efficient way to manage projects that would
        allow an increased amount of managed projects/project
        managers to get a higher return on investment.


               44. Zollinger made recommendations on how to improve
        Freije’s foreman’s expectations regarding the project manager’s
        duties.


               45. Zollinger made recommendations on how to improve
        the superintendent’s expectations regarding the project manager’s
        duties.

Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020         Page 20 of 27
                     46. Zollinger made recommendations on how to improve
               construction field efficiencies.


                     47. Zollinger made recommendations on how Freije could
               improve the constructability of designs and how to improve
               drawing them more efficient in the field.


                      48. Zollinger made recommendations on how to improve
               training for forem[e]n, technicians, and project managers.


                     49. Zollinger made recommendations on how to increase
               revenue from techs and the margins earned on the techs.


                    50. Zollinger made recommendations on how Freije could
               improve its recruiting strategies.


       Appellant’s App. Vol. II pp. 63-68.


[29]   Zollinger takes particular issue with the notion that assisting Freije in the

       development of a “fab shop” violated the restrictions. He notes that “WME

       does not treat its fab shop as proprietary,” that “WME does not keep its fab

       shop a secret to those outside its organization,” that “[t]he Seven stop process

       for starting up a fab shop is not confidential or proprietary because similar

       materials published by the [Mechanical Contractors Association] are readily

       available for anyone to download,” and that “Freije can hire another consultant

       to build a fab shop.” Appellant’s Br. pp. 42-43. But the fact that Freije might

       not have needed Zollinger’s assistance in building a fab shop does not mean

       that it did not benefit greatly from his assistance, particularly given the trial

       court’s finding that Zollinger “has laid out four (4) fab shops to substantial

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020         Page 21 of 27
       completion and consulted on another.” And even if we were to agree with

       Zollinger that his work on Freije’s fab shop did not violate the restrictions, his

       other work did, including: assisting Freije with the potential sale of one of its

       divisions and with developing career paths for employees; creating job

       descriptions for project managers, superintendents, and estimators; reviewing

       bids; reviewing and recommending equipment for Freije’s compressor rebuild

       shop; assisting with Freije’s mentoring program; recommending improvements

       regarding the duties of project managers, construction-field efficiencies, the

       constructability of designs, training for foremen, technicians, and project

       managers, and recruiting strategies; and recommending how to increase

       revenue and margins from techs. In light of the extensive and important work

       Zollinger did for Freije, the trial court did not err by concluding that Zollinger

       violated Section 14.02(a) and (b) of the Operating Agreement and Section 7(a)

       of the Employment Agreement.3


                                                  B. Injunction
[30]   Zollinger contends that the trial court erred by including an injunction in its

       June 2019 order, requiring him to comply with the restrictions in the Operating

       Agreement and the Employment Agreement. He asserts that injunctive relief is




       3
         The trial court also found that Zollinger violated Section 14.02(c) of the Operating Agreement, which
       prohibits him from performing “work of the type” he performed for WME for any customers of WME.
       Appellant’s App. Vol. III p. 58. Zollinger asserts that there is no evidence in the record that he performed
       any work for WME’s current or past customers. WME does not dispute that assertion, so we agree that the
       trial court erred in this regard. However, Zollinger does not argue that he was prejudiced by this error or
       propose specific relief. As such, there is no need for remand on this issue.

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                              Page 22 of 27
       improper because WME did not explicitly request it in any of its pleadings. He

       cites our decision in Tomahawk Village Apartments v. Farren, where we said that

       “‘an injunction will not ordinarily be granted under a prayer for general relief;

       but it must be expressly prayed.’” 571 N.E.2d 1286, 1294 (Ind. Ct. App. 1991)

       (quoting Lefforge v. West, 2 Ind. 514, 515 (1851)). For two reasons, we reject

       Zollinger’s argument.


[31]   First, whether injunctive relief must be specifically requested in a pleading was

       not the issue in Tomahawk Village. The issue was whether the appellant had

       waived its argument that the trial court erred by not entering an injunction. In

       holding that it had, we noted that the appellant did not ask for injunctive relief

       in its pleadings, but our ultimate holding was that the appellant “waived this

       issue due to its failure to request such relief from the trial court”—at all. 571

       N.E.2d at 1294. Here, WME did request injunctive relief (as further discussed

       below), so our holding in Tomahawk Village does not help Zollinger.


[32]   Second, even though WME did not expressly request injunctive relief in its

       pleadings, Zollinger was well aware that such relief was on the table. Injunctive

       relief is included as a remedy for WME under both the Operating Agreement

       and the Employment Agreement.4 The trial court had granted WME injunctive




       4
        Section 14.03(a) of the Operating Agreement provided, in part, “In the event of any violation of the
       covenants described in the preceding paragraphs, [WME] shall be authorized and entitled to obtain from any
       court of competent jurisdiction preliminary and permanent injunctive relief[.]” Appellant’s App. Vol. III p.
       60. Section 7 of the Employment Agreement provided, in part, “It is agreed that any breach of this
       Agreement by the Employee shall entitle [WME] to apply to any court of competent jurisdiction to enjoin
       any violation, threatened or actual, of this Agreement.” Id. at 20.

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                             Page 23 of 27
       relief in its November 2018 summary-judgment order.5 WME requested

       injunctive relief in the trial brief it filed three days before trial. Appellee’s App.

       Vol. II p. 18. And WME indicated that it wanted injunctive relief in its opening

       statement at trial. Tr. p. 59. We agree with WME that “Zollinger had both

       advance notice and a full and fair opportunity to litigate the propriety of the

       injunction.” Appellee’s Br. p. 63.


[33]   In addition to his argument about the pleadings, Zollinger contends that the

       trial court failed to make sufficient findings in support of the injunction. He

       notes that trial courts are to consider the following four factors in deciding

       whether to grant permanent injunctive relief: (1) whether the plaintiff’s

       remedies at law are inadequate; (2) whether the plaintiff has succeeded on the

       merits; (3) whether the threatened injury to the plaintiff outweighs the

       threatened harm a grant of relief would occasion upon the defendant; and (4)

       whether the public interest would be disserved by granting relief. Doe 1 v. Boone

       Cty. Prosecutor, 85 N.E.3d 902, 911 (Ind. Ct. App. 2017). He asserts that the

       trial court erred by failing to make findings as to whether the threatened injury

       to WME outweighs the threatened harm a grant of relief would occasion upon




       5
         In his opening brief, Zollinger argued that the trial court erred by granting WME injunctive relief in its
       summary-judgment order. WME responded that Zollinger waived the issue by failing to pursue an
       interlocutory appeal as a matter of right under Indiana Appellate Rule 14(A)(5) and that the issue is moot
       because the summary-judgment injunction “merged into the permanent injunction issued after trial.”
       Appellee’s Br. pp. 59-60. Zollinger did not dispute either argument in his reply brief, so we consider the issue
       abandoned.

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020                                Page 24 of 27
       him and whether the public interest would be disserved by granting relief.

       Again, for two reasons, we reject this argument.


[34]   First, Zollinger does not cite any authority requiring a trial court to make

       specific findings when granting permanent injunctive relief. Indiana Trial Rules

       52(A)(1) and 65(D) require such findings when a preliminary injunction is

       granted. However, those rules say nothing about permanent injunctions. See

       Neel v. Ind. Univ. Bd. of Trs., 435 N.E.2d 607, 613 (Ind. Ct. App. 1982).


[35]   Second, as WME notes, Indiana courts have repeatedly held that injunctive

       relief is an appropriate remedy for the breach of a restrictive covenant. See, e.g.,

       Washel v. Bryant, 770 N.E.2d 902, 907 (Ind. Ct. App. 2002); Unishops, Inc. v.

       May’s Family Ctrs., Inc., 399 N.E.2d 760, 765 (Ind. Ct. App. 1980). Zollinger

       did not address that caselaw in his reply brief. He merely repeated the

       conclusory argument he made in his opening brief.


[36]   Zollinger has failed to show that the trial court erred by granting injunctive

       relief.


                                C. Attorney’s Fees and Expenses
[37]   Finally, Zollinger challenges the trial court’s award of attorney’s fees and

       expenses to WME. The trial court entered that award pursuant to Section

       14.03(c) of the Operating Agreement, which provides, “In the event the

       Company or its Affiliates bring an action, suit or proceeding based upon an

       actual or threatened breach of Section 14, the prevailing party shall be entitled


       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020          Page 25 of 27
       to recover the attorney fees and expenses incurred in prosecuting or defending

       such action.”


[38]   Zollinger’s first argument is that Section 14.03(c) is not implicated because the

       trial court “erred in finding that the restrictive covenants in the Operating

       Agreement were not superseded by the integration clause, were reasonable as a

       matter of law, and that Zollinger breached the restrictions.” Appellant’s Reply

       Br. p. 29. Because we have rejected those claims of error, this argument fails.


[39]   Zollinger also asserts that the trial court erred by allowing WME to submit a

       supplemental fee affidavit after trial. At the trial on April 11, 2019, WME

       presented evidence of the attorney’s fees it had incurred through April 2. Its

       post-trial supplemental affidavit addressed fees incurred between April 3 and

       April 10, on the day of trial, and in the drafting of proposed findings and

       conclusions. Zollinger objected to the affidavit, stating, “To allow WME to

       now submit additional evidence regarding attorney fees would be prejudicial to

       Zollinger, as he has no ability to cross-examine WME regarding its attorney

       fees.” Appellee’s App. Vol. II p. 22. He did not cite any authority supporting

       his position. He renews the argument on appeal, but he again fails to cite any

       authority, so the argument is waived. See Ind. Appellate Rule 46(A)(8)(a)

       (providing that “[e]ach contention must be supported by citations to the

       authorities” relied on). Waiver notwithstanding, Zollinger’s argument is

       without merit. When he objected to the supplemental affidavit, he did not tell

       the trial court what part(s) of the affidavit concerned him or what his cross-

       examination would have entailed. Moreover, he did not ask the court to set a

       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020       Page 26 of 27
       hearing so that he could conduct such cross-examination. The trial court

       cannot be faulted for allowing the affidavit over Zollinger’s conclusory

       objection.


[40]   For these reasons, we affirm the trial court’s award of attorney’s fees and

       expenses to WME.


                                 III. Appellate Attorney’s Fees
[41]   WME contends that it is also entitled to an award of appellate attorney’s fees

       under Section 14.03(c) of the Operating Agreement. We agree. “[W]hen a

       contract provision provides that attorney fees are recoverable, appellate

       attorney fees may also be awarded.” Cavallo v. Allied Physicians of Michiana,

       LLC, 42 N.E.3d 995, 1010 (Ind. Ct. App. 2015). Zollinger’s only response to

       WME’s request for fees is that the restrictions in the Operating Agreement are

       not enforceable and that, even if they are, he did not violate them. Because we

       have rejected those arguments, WME is entitled to an award of reasonable

       appellate attorney’s fees, and we remand to the trial court for a determination of

       the appropriate award.


[42]   Affirmed and remanded.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-1501 | April 23, 2020      Page 27 of 27
