MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                              Jan 14 2020, 9:25 am
Memorandum Decision shall not be regarded as
                                                                             CLERK
precedent or cited before any court except for the                       Indiana Supreme Court
                                                                            Court of Appeals
purpose of establishing the defense of res judicata,                          and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
P. Adam Davis                                             Josh Brown
Davis & Sarbinoff, LLC                                    Stephanie Maris
Carmel, Indiana                                           Cohen Garelick & Glazier
                                                          Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

K.R. Calvert Co., LLC,                                    January 14, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-PL-443
        and                                               Appeal from the Hamilton
                                                          Superior Court
Philip Davis,                                             The Hon. Jonathan M. Brown,
                                                          Judge
Appellant,
                                                          Trial Court Cause No.
                                                          29D02-1501-PL-33
        v.

Brian Sandys and
Jennifer Sandys,
Appellees-Plaintiffs.



Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020                  Page 1 of 26
                                           Case Summary
[1]   In 2014, Medex Patient Transport, LLC, sold a franchise to JBS Transport,

      which was co-owned by Brian and Jennifer Sandys. After a few months, the

      parties terminated the franchise agreement, and, shortly thereafter, one of the

      owners of Medex sent an email to Medex’s other franchisees that contained

      allegedly defamatory statements about the Sandyses. The Sandyses sued

      Medex, Medex’s owners, and two affiliated companies (including K.R. Calvert

      Co., LLC) for breach of contract and defamation.

[2]   Eventually, a discovery dispute developed, which resulted in the trial court

      issuing an order to compel discovery to K.R. Calvert. After several months, the

      Sandyses notified K.R. Calvert that it still had not complied with the trial

      court’s order to compel, nor had it answered their amended complaint. The

      email, to which K.R. Calvert’s attorney responded, indicated that the Sandyses

      would seek default judgment against K.R. Calvert if it did not answer its

      amended complaint within approximately a week.

[3]   Approximately one month later, the Sandyses moved for default judgment

      against K.R. Calvert, which had not answered the amended complaint, and the

      trial court granted the motion. K.R. Calvert moved to vacate the default

      judgment, which motion the trial court denied on the basis that K.R. Calvert

      had not timely answered the Sandyses amended complaint and could not

      establish excusable neglect.

[4]   In May of 2018, the Sandyses moved to voluntarily dismiss all parties except

      K.R. Calvert because they had negotiated a settlement with them, which
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 2 of 26
      motion the trial court granted. K.R. Calvert moved to strike the voluntary

      dismissal of the other defendants, which motion the trial court denied. In

      addition, the trial court ordered K.R. Calvert’s counsel Philip Davis to

      personally pay $630.00 in attorney’s fees for filing what it determined to be an

      improper motion to strike. Davis did not pay, and this award of fees was

      eventually increased to $1260.00 and reduced to a civil judgment against him in

      favor of the Sandyses. In January of 2019, the trial court entered its final

      judgment against K.R. Calvert in favor of the Sandyses, awarding them

      damages of $10,000.00 for breach of contract, damages of $40,000.00 for

      defamation per se, and $106,676.40 in attorney’s fees. K.R. Calvert contends

      that the trial court abused its discretion in denying its request for relief from the

      default judgment, erred in awarding damages for breach of contract and

      defamation per se, and improperly awarded attorney’s fees. Because we

      disagree with all of K.R. Calvert’s contentions, we affirm.


                            Facts and Procedural History
[5]   Medex is owned and operated by Klein and Kyle Calvert and offers franchises

      for the operation of a business that provides non-emergency medical

      transportation services. K.R. Calvert is an affiliate of Medex that is also owned

      and operated by Klein and Kyle and acts as the operations arm of the Medex

      franchise. The Sandyses are co-owners of JBS. Through JBS, the Sandyses

      entered into a franchise agreement with Medex on or about March 3, 2014.

[6]   Things did not go well for long, and the Sandyses’ franchise agreement was

      mutually terminated by way of a settlement agreement dated December 19,
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 3 of 26
      2014 (the “Settlement Agreement”), executed by Medex, JBS, and the

      Sandyses. The Settlement Agreement contains a non-disparagement clause

      which states, in part, that

              [t]he Parties agree that they shall not disparage, demean, or make
              complaints against, either formally or informally, or assist in
              communicating any information damaging or potentially
              damaging to the business or reputation of the Parties, to any third
              party, including but not limited to, the media, the business
              community, the general public, employees, agents, or customers of
              the Parties.
      Appellant’s App. Vol. II p. 73.

[7]   Shortly after the Settlement Agreement was executed, Kyle sent the following

      email to the entire Medex franchise system (the “December 19th Email”):

              As of today Brian Sandys’ Indianapolis location will be closing.
              While this closure has no impact on your day-to-day we wanted to
              make you aware. In the healthcare franchise industry there is a
              9% failure rate. For us, even one is too many, and our goal is to
              achieve a 0% failure rate. I think with renewed effort on our part
              and yours we can minimize issues and continue growth.
              Here are things we’re learning and things you should pay close
              attention to:
              Our most successful stores are the ones where owners are active
              daily. No second jobs, no part time attention; full time work day
              in and day out.
              Up to date on receivables with their client base. Aging accounts
              cripples cash flow and will cause issues with your payroll and
              payables.
              Behind or in default of royalties or operations fees. This one is
              being addressed on a case-by-case basis. But if your location is
              behind with any payment you’re in breach of your contract and

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 4 of 26
              may be terminated with cause. Make sure you stay current on
              payables.
              Rejecting or refusing work. We have sent opportunities out to
              help with growth. New contracts and contacts to get you business.
              Some have refused to grow, add vans, or even connect with the
              potential work. If this continues you’ll be found in breach of your
              contract as well for rejecting business that results in over 2% of
              your trip volume.
              And last but not least… sell sell sell. Those of you who stay
              behind a desk or steering wheel and don’t network or sell are going
              to lose tremendous business and the possibility of new business. If
              you’re not growing, you’re dying.
              I know this a hard email on Friday afternoon before Christmas,
              but these are the realities of business. If you don’t vigilantly work,
              fail to take ownership and responsibility, and refuse to grow then
              the outcome may be bleak.
              However, I know each of you are going to take this letter and let it
              charge you to improve, it did us. With the New Year let’s resolve
              to better everyone, everything, everywhere. Let’s make 2015 a
              positive one and let’s end with that.
      Appellant’s App. Vol. II pp. 112–13.

[8]   Prior to receiving the December 19th Email, none of the other franchisees had

      been aware that the Sandyses were closing their Indianapolis franchise. Two

      franchisees, Wayne and Anabella Zeitler, later indicated that the statements in

      the December 19th Email had negatively impacted their opinion of the Sandyses

      and had made them think that their franchise was a failure, they were not active

      owners, they were behind on payments and in breach of their franchise

      agreement, they were behind on payables, their franchise failed as a result of

      their failure to grow, they did not work hard, and they did not take ownership


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 5 of 26
       and responsibility and refused to grow. Wayne, who also happens to work as a

       FedEx pilot with Brian, further testified that after receiving the December 19th

       Email, his personal opinion of Brian as a pilot was negatively affected.

[9]    On January 6, 2015, the Sandyses filed suit against Medex; K.R. Calvert; Caliber

       Patient Care, LLC; Kyle; and Klein, alleging breach of contract and defamation.

       On February 4, 2015, attorney Phillip Davis appeared on behalf of Medex,

       Caliber, and Klein. Other attorneys eventually also entered appearances for

       Medex, Kyle, and Klein, but no attorney entered an appearance on behalf of K.R.

       Calvert.

[10]   On March 29, 2016, the Sandyses wrote to Attorney Davis and counsel for

       Medex and the Calverts regarding a discovery dispute, which letter took issue

       with “the responses of your clients, Medex Patient Transport LLC (“Medex”),

       Caliber Patient Care, LLC (“Caliber”), Kyle Calvert (“Kyle”), Klein Calvert

       (“Klein”), and K.R. Calvert Co., LLC (“K.R. Calvert”) (collectively,

       “Defendants”) to Plaintiffs Brian and Jennifer Sandys’s First set of

       Interrogatories and First Request for Production of Documents[.]” Appellant’s

       App. Vol. III p. 22. On June 27, 2016, the Sandyses moved to compel the

       defendants, including K.R. Calvert, to respond to interrogatories and produce

       certain documents. On November 17, 2016, the trial court granted the

       Sandyses’ motion to compel discovery. K.R. Calvert, however, did not respond

       to the interrogatories or produce the documents requested.

[11]   Meanwhile, on August 26, 2016, the Sandyses moved for leave to file an

       amended complaint. On November 17, 2016, the Sandyses amended their
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 6 of 26
       complaint to add three counts, namely fraud, negligent misrepresentation, and

       violation of the Indiana Franchise Act, all based on Kyle’s alleged failure to

       disclose a bankruptcy in Medex’s franchise disclosure document. On April 7,

       2017, Attorney Davis answered the Sandyses’ amended complaint on behalf of

       Caliber, but no answer was filed on behalf of K.R. Calvert.

[12]   On May 9, 2017, the Sandyses’ counsel provided written notice to K.R. Calvert

       in an email that it had neither provided responsive documents pursuant to the

       order to compel discovery nor answered the amended complaint. The body of

       the email reads, in full, as follows:

               K.R. Calvert has failed to provide document responses to the
               Sandys Parties Requests For Production, which were served on
               November 23, 2015. Moreover, the Court granted the Sandys
               Parties Motion to Compel the production of documents on
               November 17, 2016. We still have NO documents from K.R.
               Calvert. That is what we see as wrong. K.R. Calvert’s disregard
               of the Court’s Order compelling the production of documents is
               troubling, and I don’t believe the Court is going to take to kindly
               to you or your client if I have to bring it to their attention. Please
               provide these long overdue documents by Friday, May 19th. If I
               am not in receipt of these documents by the end of business (5:30
               pm) on Friday, May 19th I will be filing a motion to hold K.R.
               Calvert and you as their Counsel in contempt of the Court’s Order
               and seek fees and sanctions.
               Additionally, I do not believe that K.R. Calvert has Answered the
               Sandys Parties Amended Complaint. If you do not file an Answer
               by the end of the week we will be moving for default judgment.
       Appellant’s App. Vol. IV p. 120. Attorney Davis responded to this email the

       same day, asking the Sandyses’ counsel what was missing, to which the


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 7 of 26
       Sandyses’ counsel responded that they had received nothing from K.R. Calvert

       yet.

[13]   On June 7, 2017, or twenty-nine days later, the Sandyses moved for default

       judgment against K.R. Calvert, which had still neither complied with the order

       to compel discovery nor answered the Sandyses’ amended complaint. On June

       19, 2017, the trial court entered default judgment in favor of the Sandyses

       against K.R. Calvert. On June 20, 2017, K.R. Calvert moved to vacate the

       order entering default judgment in favor of the Sandyses.

[14]   On August 7, 2017, the trial court denied K.R. Calvert’s motion to vacate on

       the ground that it had

               failed to file an answer to the Plaintiffs’ Amended Complaint for
               over 7 months, and only filed an answer after the Court issued the
               default judgment entry. Further, Defendant failed to set forth the
               basis for setting aside the default judgment pursuant to Ind. T.R.
               60(B), which requires excusable neglect and a meritorious defense.
       Appellant’s App. Vol. II p. 48. The trial court further ordered K.R. Calvert to

       provide any outstanding responsive documents and/or discovery to the

       Sandyses, as well as a response by August 14, 2017, and took the issue of

       contempt and sanctions related to discovery under advisement pending oral

       arguments on the issue during the damages hearing.

[15]   On August 15, 2017, K.R. Calvert filed a notice of compliance with the August

       7, 2017, order after sending a letter to the Sandyses on August 14, 2017, which

       stated that there were no responsive documents to be produced relating to the

       Sandyses’ discovery requests. Accompanying the letter were several

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 8 of 26
       documents, none of which were responsive to the requests for production. On

       September 8, 2017, the Sandyses responded to the notice of compliance,

       maintaining that K.R. Calvert still had not produced any email or other

       communications regarding the Sandyses and/or JBS in violation of the trial

       court’s order of August 7, 2017.

[16]   On September 11, 2017, the trial court conducted the first of what would

       eventually be five damages hearings. On October 20, 2017, as requested by the

       trial court, the Sandyses filed their initial petition for damages and attorney’s

       fees. K.R. Calvert filed its response on November 9, 2017, after filing four

       motions for extension of time within ten days. On November 13, 2017, the trial

       court issued an order regarding the requests for extensions of time in which it

       “strongly admonishe[d] counsel to be more appreciative of not only opposing

       counsel’s time, but also the time of the Court.” Appellant’s App. Vol. VI p. 88.

[17]   Meanwhile, the Sandyses moved to voluntarily dismiss, with prejudice, Medex,

       Caliber, Kyle, and Klein because they had reached a settlement agreement with

       them. On May 8, 2018, the trial court granted the Sandyses’ motion. On May

       11, 2018, K.R. Calvert moved to strike the Sandyses’ voluntary dismissals of

       the other defendants, which motion the trial court denied on May 22, 2018. In

       its order, the trial court noted that K.R. Calvert did not have any claims

       pending against any of the dismissed parties, Attorney Davis did not represent

       any of them, and none of the dismissed parties had indicated any objection to

       being dismissed. The trial court, however, denied the Sandyses’ request for

       attorney’s fees at that time. On July 18, 2018, the trial court issued another

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 9 of 26
       order in which it reaffirmed its denial of K.R. Calvert’s motion to strike but

       reversed its earlier decision on fees, ordering Attorney Davis to pay the

       Sandyses’ trial counsel Joshua Brown $630.00 in attorney’s fees.

[18]   On October 16, 2018, the Sandyses moved for a rule to show cause why

       Attorney Davis should not be held in contempt, as he had yet to pay Attorney

       Brown the $630.00 he had been ordered to. On October 17, 2018, the trial

       court granted the Sandyses’ motion; set the matter for a hearing on January 7,

       2019; and gave Attorney Davis until October 31, 2018, to purge himself of

       contempt by paying the $630.00. Attorney Davis did not pay before October

       31, 2018.

[19]   On January 7, 2019, the Sandyses requested an additional $630.00 in attorney’s

       fees from Attorney Davis, and the trial court entered a civil judgment of

       $1260.00 against Attorney Davis in favor of the Sandyses. On January 24,

       2019, the trial court entered its final judgment against K.R. Calvert in favor of

       the Sandyses, awarding them damages of $10,000.00 for breach of contract,

       damages of $40,000.00 for defamation per se, and $106,676.40 in attorney’s fees.


                                  Discussion and Decision
                      I. Whether the Trial Court Abused its
                       Discretion in Denying K.R. Calvert’s
                     Motion for Relief from Default Judgment
[20]   The trial court entered default judgment in favor of the Sandyses and against

       K.R. Calvert because it did not answer the Sandyses’ amended complaint.

       Indiana Rule of Trial Procedure 8(B) provides, in part, that “[a] responsive
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 10 of 26
       pleading shall state in short and plain terms the pleader’s defenses to each claim

       asserted and shall admit or controvert the averments set forth in the preceding

       pleading.” “When a party against whom a judgment for affirmative relief is

       sought has failed to plead or otherwise comply with these rules and that fact is

       made to appear by affidavit or otherwise, the party may be defaulted by the

       court.” Trial R. 55(A).


[21]   If a party is defaulted, “[a] judgment by default which has been entered may be

       set aside by the court for the grounds and in accordance with the provisions of

       Rule 60(B).” Trial R. 55(C). Trial Rule 60(B) provides, in part, that “[o]n

       motion and upon such terms as are just the court may relieve a party or his legal

       representative from a judgment, including a judgment by default, for the

       following reasons: (1) mistake, surprise, or excusable neglect[.]”


               The burden is on the movant to demonstrate that relief under T.R.
               60(B) is both necessary and just. Fairrow v. Fairrow, 559 N.E.2d
               597, 599 (Ind. 1990). Relief under T.R. 60(B)[(1)] also requires
               that the movant make a prima facie showing of a meritorious
               defense[.] Smith v. Johnson, 711 N.E.2d 1259, 1265 (Ind. 1999). A
               meritorious defense refers to “evidence that, if credited,
               demonstrates that a different result would be reached if the case
               were retried on the merits and that it is unjust to allow the default
               to stand.” Id.
       In re Rueth Dev. Co., 976 N.E.2d 42, 51 (Ind. Ct. App. 2012), trans. denied.

[22]           We review the grant or denial of […] Trial Rule 60(B) motions for
               relief from judgment under an abuse of discretion standard.
               Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270
               (Ind. 2008); Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65,
               72 (Ind. 2006). On appeal, we will not find an abuse of discretion
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 11 of 26
               unless the trial court’s decision is clearly against the logic and
               effect of the facts and circumstances before it or is contrary to law.
               Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct. App. 1998).
       Cleveland v. Clarian Health Partners, Inc., 976 N.E.2d 748, 755 (Ind. Ct. App.

       2012), trans. denied. K.R. Calvert contends that the trial court abused its

       discretion in refusing to find that it had established excusable neglect and/or a

       meritorious defense. We first address K.R. Culvert’s contention that the trial

       court abused its discretion in determining this its neglect was inexcusable.


[23]           When deciding whether or not a default judgment may be set aside
               because of excusable neglect, the trial court must consider the
               unique factual background of each case because “no fixed rules or
               standards have been established as the circumstances of no two
               cases are alike.” Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332,
               340 (Ind. 1983); quoting Grecco v. Campbell, 179 Ind. App. 530, 386
               N.E.2d 960, 961 (1979); see also Boles v. Weidner, 449 N.E.2d 288,
               290 (Ind. 1983).
       Coslett v. Weddle Bros. Const. Co., 798 N.E.2d 859, 860–61 (Ind. 2003) (citations

       and quotation marks omitted). We agree with the proposition that

       “‘[e]xcusable neglect […] is just that: excusable neglect, not just neglect. It is

       something that can be explained by an unusual, rare, or unforeseen

       circumstance, for instance.’” Huntington Nat. Bank v. Car-X Assoc. Corp., 39

       N.E.3d 652, 656 (Ind. 2015) (quoting, with approval, Huntington Nat. Bank v.

       Car-X Assocs. Corp., 22 N.E.3d 687, 694 (Ind. Ct. App. 2014) (Barnes, J.,

       dissenting), vacated, 29 N.E.3d 123 (2015)).

[24]   We conclude that, under the circumstances of this case, the trial court did not

       abuse its discretion in declining to find excusable neglect. Attorney Davis

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 12 of 26
       focuses on his admitted error in appearing for and responding to the Sandyses

       amended complaint on behalf of Caliber (instead of K.R. Calvert), and, while

       acknowledging the error, characterizes it as a “clerical error” which he claims

       to have discovered only upon the entry of default judgment. Appellant’s Br. p.

       20. We think that Attorney Davis and K.R. Calvert are largely missing the

       point here. The problem is not that K.R. Calvert initially failed to appear or

       answer the amended complaint due to an error—the problem is that K.R.

       Calvert failed to answer the amended complaint even after it was informed that

       it had not already answered and that a failure to promptly do so would cause

       the Sandyses to move for default judgment.

[25]   K.R. Calvert contends the portion of the May 9, 2017, email informing it that it

       had not answered the Sandyses’ amended complaint and that the Sandyses

       would be seeking default judgment if it did not file an answer was “overlooked

       in all the back and forth between the parties.” Appellant’s Br. p. 20 n.14. Even

       if we assume that this is true, we cannot say that this amounts to excusable

       neglect as a matter of law. The email in question was from opposing counsel in

       a pending lawsuit, something to which prompt and thorough attention should

       have been paid. Moreover, the section of the email addressing K.R. Calvert’s

       failure to answer the amended complaint directly followed the section about

       K.R. Calvert’s failure to provide requested documents pursuant to an order to

       compel, so it was abundantly clear that the email was about business. Finally,

       the section in question was in the main body of a somewhat short email, not

       buried in a postscript or footnote where it might not be noticed. In short, there

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 13 of 26
       was nothing rare, unusual, or unforeseen that would excuse such an oversight.

       Even if we assume that K.R. Calvert failed to notice and/or appreciate the

       importance of the May 9, 2017, email, that failure, while it certainly strikes us

       as negligent, was not excusable as a matter of law. We conclude that the trial

       court did not abuse its discretion in refusing to vacate the default judgment

       entered against K.R. Calvert.

                        II. Whether the Trial Court Abused its
                          Discretion in Determining Damages
[26]   K.R. Calvert contents that the trial court abused its discretion in awarding the

       Sandyses $10,000.00 for breach of contract and $40,000.00 for defamation per

       se. Generally,

               [t]he standard of review for a damage award is that no reversal will
               occur if the award is within the scope of evidence before the trial
               court; if the award of damages is supported by the record, the
               determination of damages is within the sound discretion of the
               trial court.
       Brant Const. Co. v. Lumen Const. Co., 515 N.E.2d 868, 872 (Ind. Ct. App. 1987),

       trans. denied.

               An abuse of discretion occurs when the trial court’s action is
               against the logic and effect of the facts and circumstances before it.
               In determining whether the trial court abused its discretion, we
               must only consider the evidence and reasonable inferences
               favorable to the non-moving party. We may not weigh conflicting
               evidence or judge the credibility of witnesses.
       Menard, Inc. v. Comstock, 922 N.E.2d 647, 650 (Ind. Ct. App. 2010) (citations

       omitted), trans. denied. K.R. Calvert contends that there is no evidence that


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 14 of 26
       would support a conclusion that it caused the Sandyses any damages, a

       settlement reached between the Sandyses and other defendants entitles it to a

       set-off against its damages, an award of damages is inappropriate because the

       Sandyses failed to mitigate their damages, and the amounts of damages are

       unsupported by the record.

                                               A. Causation
[27]   K.R. Calvert first argues that there is no evidence that it was a party to the

       Settlement Agreement or that it had anything to do with the defamatory

       communication. Those particular ships, however, have sailed. “A default

       judgment has been defined as a confession of the complaint and it is rendered

       without a trial of any issue of law or fact.” Davis v. Davis, 413 N.E.2d 993, 996–

       97 (Ind. Ct. App. 1980). Following the entry of default judgment, the

       defendant may no longer avail himself of substantive defenses. See Siebert

       Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 338 (Ind.1983) (“Substantive defenses

       as to causation are no longer an issue between parties after there has been an

       entry of default against the defendant. Thus, the question of a lack of causation

       between plaintiff Shields’ injuries and defendant Oxidermo’s conduct would not

       have been a proper subject for consideration even in Oxidermo’s first Rule

       60(B) motion.”) (citation omitted). The Sandyses’ amended complaint alleged

       that K.R. Culvert breached the Settlement Agreement and defamed them,

       causing damages. The entry of default judgment against K.R. Culvert means

       that those allegations were deemed confessed, and the only thing left to

       determine was the amount of damages.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 15 of 26
                                                  B. Set-Off
[28]   K.R. Calvert claims that, in light of the Sandyses’ apparent $80,000.00

       settlement with the other defendants, the award of $10,000.00 for breach-of-

       contract and $40,000.00 for defamation per se represents an impermissible

       double recovery.

               A trial court has the power and duty to reduce jury verdicts by
               amounts received in settlement to ensure that a plaintiff not
               receive more than a full recovery. Huffman v. Monroe County Cmty.
               Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). Because the
               settlement credit is in the nature of an affirmative defense on the
               issue of damages, the defendant who seeks to take advantage of
               this credit bears the burden of proving the amount of the credit to
               which he is entitled. Riehle v. Moore, 601 N.E.2d 365, 371 (Ind. Ct.
               App. 1992), trans. denied. […]
               When the actions of multiple defendants cause a single injury to a
               plaintiff, a defendant against whom judgment is rendered at trial is
               entitled to a setoff against the assessed damages in the amount of
               any funds the plaintiff received from any settling joint tortfeasor.
               [Marquez v. Mayer, 727 N.E. 2d 768, 774 (Ind. Ct. App. 2000),
               trans. denied).] Joint tortfeasors are those whose actions unite to
               cause a single injury. Id. This credit is allowed in order to prevent
               a plaintiff from recovering twice for the same injury. Id. As our
               Supreme Court outlined in [Mendenhall v. Skinner & Broadbent Co.,
               728 N.E.2d 140, 141 (Ind. 2000)], Indiana courts have
               traditionally followed the “one satisfaction” principle, meaning
               that courts should take account of settlement agreements and
               credit the funds received by the plaintiff through such agreements,
               pro tanto, toward the judgment against the co-defendants.
       Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093, 1100–01 (Ind.

       Ct. App. 2007), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 16 of 26
[29]   The trial court found that K.R. Calvert failed to meet its burden of proving

       what portion of the settlement amount was allocated to the breach-of-contract

       and defamation per se claims or present any other evidence to support a right to

       a set-off. K.R. Calvert points to nothing in the record that undermines this

       finding, merely baldly stating that the full $80,000.00 settlement amount should

       be set off against any damages it was ordered to pay. In the absence of an

       accounting, K.R. Calvert has failed to establish that the trial court abused its

       discretion in declining to order a set-off against its damages in the amount paid

       by the settling defendants.

                                               C. Mitigation
[30]   K.R. Calvert also alleges that the Sandyses are not entitled to an award of

       damages because they failed to mitigate their damages.

               “The principle of mitigation of damages addresses conduct by an
               injured party that aggravates or increase the party’s injuries.”
               Willis v. Westerfield, 839 N.E.2d 1179, 1187 (Ind. 2006) (quoting
               Deible v. Poole, 691 N.E.2d 1313, 1315 (Ind. Ct. App. 1998), aff’d
               702 N.E.2d 1076 (Ind. 1998)). The failure to mitigate damages “is
               an affirmative defense that may reduce the amount of damages a
               plaintiff is entitled to recover after liability has been found.” Id.
               That is, “the amount of damages a plaintiff is entitled to recover is
               reduced by those damages which reasonable care would have
               prevented.” Id. This affirmative defense has two elements, both
               of which the defendant bears the burden of proving. Id. at 1188.
               “First, the defendant must prove that the plaintiff failed to exercise
               reasonable care to mitigate his or her post-injury damage. Second,
               the defendant must prove that the plaintiff’s failure to exercise
               reasonable care caused the plaintiff to suffer an identifiable item of
               harm not attributable to the defendant’s negligent conduct.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 17 of 26
       Simmons v. Erie Ins. Exch., 891 N.E.2d 1059, 1064 (Ind. Ct. App. 2008).

[31]   K.R. Calvert claims that the Sandyses failed to mitigate their damages when

       they did not approve or otherwise revise a draft retraction letter written by K.R.

       Calvert which, as it happens, was never sent to any of the individuals who

       received the December 19th Email. We fail, however, to see how it was the

       Sandyses’ responsibility to approve or revise the draft retraction letter for K.R.

       Calvert. As the trial court noted during the March 6, 2018, damages hearing,

       the Sandyses “didn’t have any control over K R Calvert.” Tr. Vol. III p. 193.

       K.R. Calvert certainly could have sent a retraction to the recipients of the

       December 19th Email in an attempt to reduce the damage to the Sandyses, but it

       did not. We agree with the Sandyses that they should not pay for K.R.

       Calvert’s failure to send the retraction letter.

                                        D. Breach of Contract
[32]   K.R. Calvert argues that the record does not support the award of $10,000.00 in

       damages for breach of contract. K.R. Calvert first argues that it cannot be held

       liable for breaching the Settlement Agreement because it was not a party to it.

       As mentioned, this is a substantive defense no longer available to K.R. Calvert.

       See Siebert Oxidermo, 446 N.E.2d at 338. K.R. Calvert also points to statements

       made by the Sandyses’ counsel at a hearing on September 11, 2017, at which he

       stated that the only damages the Sandyses could show at that point were

       nominal damages related to defamation per se and that “we don’t have any

       actual damages to show.” Tr. Vol. II p. 208. This statement, however, was

       made approximately five months before the depositions of the Zeitlers, who

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 18 of 26
       testified at length regarding the reputational damage suffered by the Sandys. A

       concession made many months before the most relevant evidence regarding

       damages was developed does not undermine the ultimate award of damages.

                                                 E. Defamation
[33]   K.R. Calvert also contends that the trial court abused its discretion in awarding

       $40,000.00 in damages for defamation per se. If a communication is defamatory

       per se, “the law implies, infers, or presumes general damages as the natural and

       probable consequences of such defamation[.]”1 Elliott v. Roach, 409 N.E.2d 661,

       683 (Ind. Ct. App. 1980) citation and quotation marks omitted).

                 Indiana law reflects the historic rule that publication in written
                 form of statements per se—words which, on their face and without
                 regard to extrinsic facts, tend to injure the reputation of another—
                 subjects a publisher to liability although no harm to reputation is
                 actually proved. Under the ‘presumed damages’ rule, juries may
                 award substantial sums as compensation for supposed injury to
                 reputation without any proof that such harm was actually suffered.
       Id. (citations omitted).




       1
           The Sandyses alleged that the December 19th Email was defamatory per se:
                 A statement is defamatory if it tends “to harm a person’s reputation by lowering the person
                 in the community’s estimation or deterring third persons from dealing or associating with
                 the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (internal citation omitted).
                 One type of defamation action, alleging defamation per se, arises when the language of a
                 statement, without reference to extrinsic evidence, constitutes an imputation of (1) criminal
                 conduct, (2) a loathsome disease, (3) misconduct in a person’s trade, profession, office, or
                 occupation, or (4) sexual misconduct.
       Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (second emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020                   Page 19 of 26
[34]   K.R. Calvert argues that the Sandyses produced insufficient evidence to sustain

       the award of $40,000.00 in damages because they failed to prove any actual

       damages. As just mentioned, however, such proof is not necessary in a

       defamation per se case. Moreover, K.R. Calvert does not argue that the award

       exceeds the permissible “substantial” sum that may be awarded in defamation

       per se cases. Id. In conclusion, K.R. Calvert has failed to establish that the trial

       court abused its discretion in awarding damages for breach of contract and

       defamation per se.

               III. Whether the Trial Court Properly Awarded
                      Attorney’s Fees to the Sandyses
[35]   The trial court awarded $106,676.40 in attorney’s fees to the Sandyses pursuant

       to Indiana Trial Rule 37(B) for discovery violations and Indiana Code section

       34-52-1-1(b)(3) for litigating in bad faith. The trial court identified several

       reasons for finding that K.R. Calvert had failed to cooperate with discovery

       and/or litigated in bad faith:

                     3.     Throughout this case, there are several examples of
               K.R. Calvert engaging in bad faith litigation tactics. First, on June
               19, 2017, K.R. Calvert, by counsel, filed various motions after a
               default judgment had been entered. A hearing on these motions
               was held on August 7, 2017 and the Court denied K.R. Calvert’s
               Motion for Leave to File an Amended Answer declaring the
               motion moot since judgment had already been entered.
                      4.     Second, K.R. Calvert filed four motions for extension
               of time to respond to Plaintiffs’ Initial Petition for Damages and
               Attorneys’ Fees on October 31, 2017, November 6, 2017,
               November 7, 2017, and November 8, 2017 respectively. On
               November 8, 2017, Plaintiffs filed a response in opposition to the
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 20 of 26
        serial requests for extension of time as the next damages hearing
        was quickly approaching. However, since K.R. Calvert did not
        file its third motion for extension of time until 11:53 p.m., the
        extension was effectively granted as the Court could not
        practically rule on the motion before the November 7th deadline
        had passed. In this Court’s order of November 13, 2017, this
        Court “reluctantly grant[ed] the requests for extension of time”
        and “strongly admonish[ed] counsel to be more appreciative of not
        only opposing counsel’s time, but also the time of the Court.”
                5.    Third, on May 11, 2018, K.R. Calvert, by counsel,
        filed a Motion to Strike Plaintiffs’ voluntary dismissal of the other
        defendants in the lawsuit and requested that the order granting the
        dismissal be set aside. On May 22, 2018, the Court, after holding
        a hearing on the matter and indicating the motion to be improper,
        denied K.R. Calvert’s motion to strike. The Court subsequently
        ordered Mr. Davis to pay $630.00 in attorneys’ fees to Mr. Brown
        for preparing for and attending the hearing on K.R. Calvert’s
        motion to strike.
                6.     Fourth, K.R. Calvert did not produce responsive
        documents in compliance with the November 15, 2016 order
        which granted Plaintiffs’ motion to compel discovery against K.R.
        Calvert. On August 7, 2017, the Court directed K.R. Calvert to
        produce responsive documents on or before August 14, 2017, but
        K.R. Calvert continued to disregard the Court’s order by failing to
        produce responsive documents. K.R. Calvert represented to the
        Court they had complied with the August 7th Order, but
        Plaintiffs[] pointed out in their response thereto, that K.R. Calvert
        still had not produced any emails and other communications
        regarding Brian and Jennifer Sandys and/or JBS Transport.
        Rather than produce responsive documents, K.R. Calvert
        produced documents that were not specifically requested by
        Plaintiffs.
              7.     Fifth, Kyle and Klein, as principals of K.R. Calvert
        reviewed documents and made their own determination as to what
        was relevant and pertinent in relation to the discovery requests.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 21 of 26
               This was improper as neither Kyle nor Klein are attorneys who are
               familiar with the discovery rules for the State of Indiana.
                        [….]
                      9.     K.R. Calvert’s lack of good faith in the production of
               documents and abuse of the discovery process has prejudiced
               Plaintiffs by making them guess what additional, relevant, and
               pertinent documents exist in response to their discovery requests.
                       10. All of this activity indicates that K.R. Calvert
               litigated this matter in bad faith and engaged in dilatory tactics,
               filed baseless motions, unnecessarily multiplied litigation, and
               failed to comply with discovery requests and subsequent discovery
               orders. Therefore, the Court finds that Plaintiffs are entitled to
               attorneys’ fees and costs as a sanction under Ind. Trial Rule 37
               and I.C. § 34-52-1-1(b)(3).
       Appellant’s App. Vol. II pp. 82–84.

                                          A. Trial Rule 37(B)
[36]   Trial Rule 37(B) authorizes the trial court to impose expenses and attorney’s

       fees for failing to cooperate with discovery without substantial justification.

       “[C]onduct can constitute ‘bad faith’ within the meaning of [Trial Rule 37]

       although it falls short of being ‘deliberate or by design.’” Hepp v. Pierce, 460

       N.E.2d 186, 188 (Ind. Ct. App. 1984) (quoting Clark Cty. State Bk. v. Bennett, 166

       Ind. App. 471, 480, 336 N.E.2d 663, 669 (1975)). “It depends upon the

       circumstances of the given case.” Id. “Moreover, since it depends upon the

       circumstances, the prohibition against an appellate court reweighing the

       evidence comes to bear.” Id.

[37]   Of relevance to K.R. Calvert’s abuse of the discovery process, the trial court

       found that it had failed to produce responsive documents, pursuant to a court

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 22 of 26
       order, for over six months. Then, when the trial court issued another order

       compelling K.R. Calvert to comply with discovery, it responded by producing

       non-responsive documents that were not requested. We conclude that the trial

       court was in the best position to evaluate K.R. Calvert’s conduct and cannot say

       that the trial court erred in finding K.R. Calvert’s recalcitrance to be

       sanctionable. See Clark Cty. State Bk., 166 Ind. App. at 480, 336 N.E.2d at 669

       (concluding that the trial court reasonably found that defendant’s delay in

       responding to plaintiffs’ interrogatories and failing to comply with the agreed-

       upon extension amounted to bad faith and abusive conduct, justifying the

       award of attorney’s fees). To the extent that the trial court’s award of attorney’s

       fees was based on a bad-faith failure to cooperate with discovery, K.R. Calvert

       has failed to establish that it was unreasonable.

                         B. Indiana Code section 34-52-1-1(b)(3)
[38]   “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 […] litigated the action in

       bad faith[.]” Ind. Code § 34-52-1-1(b)(3). Bad faith pursuant to Indiana Code

       section 34-52-1-1(b)(3) “is not simply bad judgment or negligence. Rather it

       implies the conscious doing of a wrong because of dishonest purpose or moral

       obliquity. It is different from the negative idea of negligence in that it

       contemplates a state of mind affirmatively operating with furtive design or ill

       will.” Oxendine v. Pub. Serv. Co. of Ind., 423 N.E.2d 612, 620 (Ind. Ct. App.

       1980).



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 23 of 26
[39]            An award under Indiana Code Section 34-52-1-1 is afforded a
                multistep review. [SJS Refractory Co., LLC v. Empire Refractory
                Sales, Inc., 952 N.E.2d 758, 770 (Ind. Ct. App. 2011).] 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 award
                attorney’s fees and the amount thereof under an abuse of
                discretion standard. Id. at 770–71.
       Techna-Fit, Inc. v. Fluid Transfer Prod., Inc., 45 N.E.3d 399, 418 (Ind. Ct. App.

       2015).

[40]   K.R. Calvert does not really challenge the trial court’s findings, arguing

       essentially that we should interpret the circumstances of this case differently

       than the trial court did. K.R. Calvert also argues that other occurrences, such

       as the fact that K.R. Calvert was never actually held in contempt of court,

       undercut the trial court’s determination of bad faith. We interpret this as a

       challenge to the trial court’s legal conclusion that K.R. Calvert litigated in bad

       faith, which we review de novo.

[41]   To summarize the trial court’s findings, K.R. Calvert (1) filed several motions

       that were moot due to the default judgment that had already be entered against

       it, (2) filed four requests for an extension of time within ten days at one point,

       (3) filed an improper motion to strike the Sandyses’ settlement with the other

       defendants, (4) failed to comply with an order to compel discovery by delaying

       any response for several months and failing to deliver the requested documents

       when it did respond. Taken as a whole, we conclude that the above supports a

       finding of bad faith. For one thing, we can think of no legitimate reason to file

       four extension requests within ten days, with the last three being filed before the
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 24 of 26
       first was ruled upon. This flurry of filings led to a rather stern warning about

       wasting the parties’ and the trial court’s time. Despite this warning, K.R.

       Calvert later moved to strike the Sandyses’ voluntary dismissal of the other

       defendants, a motion the trial court found to be improper. Finally, K.R.

       Calvert delayed its response to an order to compel for several months and then

       failed to comply with the order when it did respond. All of this required the

       unnecessary commitment of time and resources by the other parties and the

       trial court, supporting an inference, at the very least, of furtive design, if not

       actual ill will. We conclude that K.R. Calvert’s actions amount to bad faith for

       purposes of Indiana Code section 34-52-1-1(b)(3), supporting an award of

       attorney’s fees. Because K.R. Calvert does not challenge the amount of the

       attorney’s fees awarded, we need not review it for an abuse of discretion. K.R.

       Calvert has failed to establish that the trial court’s award of attorney’s fees to

       K.R. Calvert was improper.

                III. Whether the Trial Court Properly Ordered
                     Attorney Davis to Pay Attorney’s Fees
[42]   As mentioned, the trial court also ordered Attorney Davis to personally pay

       $630.00 to Attorney Brown for having to defend what the trial court found to be

       an improper motion to strike the Sandyses’ voluntary dismissals of the other

       defendants. When Attorney Davis did not pay, Attorney Brown moved for a

       rule to show cause why Attorney Davis should not be held in contempt, which

       motion the trial court granted while giving him two weeks in which to purge the

       contempt, which he did not do. Finally, when Attorney Brown requested an

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 25 of 26
       additional $630.00 in attorney’s fees from Attorney Davis, the trial court

       granted the request and entered a civil judgment of $1260.00 against Attorney

       Davis in favor of the Sandyses. (Appellant’s App. Vol. II p. 62).

[43]   Attorney Davis claims only that the trial court’s fee order and civil judgment

       should be vacated because the trial court allegedly found that his motion to

       strike the Sandyses’ voluntary dismissals of the other defendants was not made

       in bad faith. While it is true that the trial court’s May 22, 2018, order declined

       to award any fees to the Sandyses at that time, its July 19, 2018, order did

       award the requested fees. So, even if we assume that the trial court initially

       found no bad faith on Attorney Davis’s part, it clearly changed its mind.

       Attorney Davis does not argue that the trial court was not allowed to revisit its

       initial determination; he simply fails to acknowledge that it did. Attorney

       Davis also does not challenge anything that occurred after the initial fee order,

       up to and including the trial court’s imposition of additional fees and reduction

       of the amount to a civil judgment. Attorney Davis has failed to establish that

       the trial court’s order that he personally pay $1260.00 to the Sandyses was

       improper in any way.

[44]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-443 | January 14, 2020   Page 26 of 26
