Terri Symons, John Nauyokas, Jennifer Reynolds, and David Dennison v. Gary Fish and Jeremey Fish

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Jonathan D. Mattingly Bryan S. Redding
Sean P. Burke Caitlin R. Jared
Hamish S. Cohen Redding Law, LLC FILED
Jeffery Furminger Carmel, Indiana Sep 29 2020, 9:45 am
Mattingly Burke Cohen & Biederman
LLP CLERK
Indiana Supreme Court
Court of Appeals
Indianapolis, Indiana and Tax Court

IN THE
COURT OF APPEALS OF INDIANA

Terri Symons, John Nauyokas, September 29, 2020
Jennifer Reynolds, and David Court of Appeals Case No.
Dennison, 20A-PL-395
Appellants-Defendants/Counterclaim Appeal from the Hamilton
Plaintiffs, Superior Court
The Honorable Michael A. Casati,
v. Judge
The Honorable Steven R. Nation,
Gary Fish and Jeremey Fish, Judge
Appellees-Plaintiffs/Counterclaim Trial Court Cause No.
Defendants. 29D01-1508-PL-6964

Najam, Judge.

Court of Appeals of Indiana | Opinion 20A-PL-395 | September 29, 2020 Page 1 of 20
 Statement of the Case
[1] Terri Symons appeals the trial court’s judgment for Gary Fish and Jeremey Fish

(“the Sellers”) following a jury trial on the Sellers’ complaint for breach of

contract arising from the sale of a business. Symons presents seven issues for

our review, which we restate as the following four issues:

1. Whether a contract clause providing for treble damages is
an unenforceable penalty.

2. Whether the Sellers’ complaint is time barred by an
eighteen-month contractual limitations period.

3. Whether the evidence or the parties’ indemnification
clause supports an award of damages greater than
$250,000.

4. Whether Symons has met her burden on appeal to show
that the trial court abused its discretion in the award of
attorneys’ fees and costs to the Sellers.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History
[3] On June 3, 2011, Symons, John Nauyokas, Jennifer Reynolds, and David

Dennison (collectively, “the Buyers”)1 purchased Breath of Life Home Medical

Equipment and Respiratory Services, Inc. (“the Company”) from the Sellers

1
Only Symons participates in this appeal.

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and other shareholders. The parties’ stock purchase agreement (“the contract”)

provided in relevant part as follows:

5.2 Personal Guaranties. Within sixty (60) days of
Closing . . . Buyer[s] will obtain the release or suitable
replacement of any personal guaranties in the name or names of
any of the selling [S]hareholders in association with Company
business. In the event Buyer[s are] unable or unwilling to release
or replace the personal guaranties of all the Shareholders then
Buyer[s], jointly and severally[,] will indemnify and hold harmless
any Shareholder and will reimburse the Shareholder three (3) times
the amount of any loss, liability, claim, damage, expense
(including reasonable costs and of investigation and defense and
reasonable attorneys’ fees and expenses) (collectively,
“Damages”)[] arising from or in connection with any personal
guaranties of any named Shareholders. At closing, Buyer[] John
Nauyokas, current CEO of Company, will provide to
Shareholders a written listing of all vendors, suppliers[,] or other
third[ ]parties associated with or doing business with the
Company that could have a personal guaranty from the
Shareholders[,] including contact information with a minimum
of an address and phone number. Within thirty (30) days
following Closing, Shareholders will provide Buyer[] John
Nauyokas[] a list of vendors or suppliers subject to this provision.
Any vendor, supplier[,] or other party not disclosed by Buyer[]
John Nauyokas[] at closing will automatically be subject to this
provision.

Appellant’s App. Vol. II at 19 (“Section 5.2”) (emphasis added). The contract

further provided in relevant part:

7.1 Survival. Unless otherwise provided herein, all
representations, warranties, covenants, and obligations in this
Agreement . . . shall survive the Closing for a period of eighteen
(18) months following the Closing Date.
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 Id. at 21 (“Section 7.1”).

[4] Subsequent to their purchase of the Company, the Buyers did not obtain the

release or replacement of the personal guaranties of the Sellers and other

shareholders to Integrated Medical Systems, Inc. (“IMS”), a vendor of medical

equipment for the Company. The Company then defaulted on more than

$800,000 in liabilities owed to IMS, and, in November of 2014, IMS brought

suit in Illinois against the Sellers to recover on their personal guaranties.

[5] The Sellers entered into a stipulated judgment with IMS, which included a

settlement agreement, (“the stipulated judgment”), in relevant part as follows:

1. Judgment . . . is hereby entered in favor of [IMS] and
against [the Sellers] . . . in the amount of [$831,222] . . . .

2. . . . [E]nforcement of the Judgment is stayed on the conditions
that [the Sellers] pay IMS [$250,000] in the following monthly
installments . . . .

3. [The Sellers] shall use their best efforts to prosecute [a]
lawsuit [against the Buyers] . . . .

4. [The Sellers] will promptly provide IMS with any
settlement documents or Court order related to any recovery
[from the Buyers], and any such recovery . . . shall be paid [by
the Sellers to IMS] as follows:

a. First to the payment of the reasonable attorney fees and
costs incurred by [the Sellers] in the [suit against the
Buyers];

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 b. Second to the payment to IMS for any attorney fees
and Court costs incurred by IMS in the [Sellers’ suit
against the Buyers];

c. Third to IMS to satisfy any amounts remaining due and
owing to IMS pursuant to Paragraph 2 above; and

d. After payments (a) – (c) are made from the Settlement
Proceeds, the remaining amount of [any such r]ecovery
shall be split 50/50 between IMS . . . and [the Sellers] . . . .

***

6. If [the Sellers] make all of the payments to IMS specified in
this Stipulated Judgment, comply with all of the terms of this
Stipulated Judgment[,] and if IMS incurs no liability in the
[Sellers’ suit against the Buyers] other than the payment of its
reasonable attorney fees and costs, IMS will provide [the Sellers]
with a release and satisfaction of this Stipulated Judgment.

7. If [the Sellers] fail to timely pay any of the payments required
by this Stipulated Judgment or otherwise fail to comply with the
terms of the Stipulated Judgment, IMS may immediately proceed to
enforce the Stipulated Judgment in the amount of the Judgement [sic],
less any payments made . . . .

Id. at 120-22 (emphases added).

[6] In August of 2015, the Sellers filed the instant suit against the Buyers for breach

of contract for failure to obtain the release or replacement of the Sellers’

personal guaranties under Section 5.2 of the contract. The Sellers sought a

judgment for three times the amount of the alleged damages, including three

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 times the attorneys’ fees and costs. The Buyers repeatedly moved for judgment

on the ground that, under Section 7.1, the Sellers’ suit was time barred because

it was not filed within eighteen months of the closing. In particular, the Buyers

moved for judgment on the pleadings, summary judgment, and judgment on

the evidence, and they filed a motion to correct error, on that theory. The trial

court denied all of those requests. Following a jury trial, the jury found for the

Sellers in the amount of $831,222. The court further awarded the Sellers their

reasonable costs and attorneys’ fees, and then tripled the award under Section

5.2 and entered judgment against the Buyers in the amount of $3,459,670.74. 2

This appeal ensued.3

Discussion and Decision
Issue One: Whether the Treble-Damages Clause
in Section 5.2 is an Unenforceable Penalty

[7] On appeal, Symons first asserts that the treble-damages clause in Section 5.2 is

not a proper liquidated damages clause but, rather, is an unenforceable penalty.

We addressed liquidated damages in Gershin v. Demming, 685 N.E.2d 1125,

1127-28 (Ind. Ct. App. 1997):

A typical liquidated damages provision provides for the forfeiture
of a stated sum of money upon breach without proof of damages.

2
The judgment was almost ten times the $350,000 purchase price for the Company under the contract.
3
Two different trial judges presided over this case. The initial proceedings through the end of 2018 were
presided over by Judge Steven R. Nation. Thereafter, Judge Michael A. Casati presided over the remainder
of the proceedings, including the jury trial and the entry of judgment on the jury’s verdict.

Court of Appeals of Indiana | Opinion 20A-PL-395 | September 29, 2020 Page 6 of 20
 Liquidated damages provisions are generally enforceable where
the nature of the agreement is such that when a breach occurs the
resulting damages would be uncertain and difficult to ascertain.
However, the stipulated sum will not be allowed as liquidated
damages unless it may fairly be allowed as compensation for the
breach.

We are tolerant of provisions within contracts which provide for
liquidated damages. Where the sum stipulated in the agreement is not
greatly disproportionate to the loss likely to occur, the provision will be
accepted as a liquidated damages clause and not as a penalty, but where
the sum sought to be fixed as liquidated damages is grossly
disproportionate to the loss which may result from the breach, the courts
will treat the sum as a penalty rather than as liquidated damages. In
determining whether a stipulated sum payable on a breach of
contract constitutes liquidated damages or a penalty, the facts,
the intention of the parties and the reasonableness of the
stipulation under the circumstances of the case are all to be
considered. The distinction between a penalty provision and one for
liquidated damages is that a penalty is imposed to secure performance of
the contract and liquidated damages are to be paid in lieu of
performance. Notwithstanding a plethora of abstract tests and
criteria for the determination of whether a provision is one for a
penalty or liquidated damages, there are no hard and fast
guidelines to follow. The question whether a liquidated damages
clause is valid, or whether it constitutes a penalty, is a pure
question of law for the court.

(Emphases added.) This Court has repeatedly recognized that damages clauses

that contain multipliers of two and three times a stipulated sum are

unenforceable penalties. E.g., Coffman v. Olson & Co., P.C., 906 N.E.2d 201, 209-

10 (Ind. Ct. App. 2009) (concluding that multipliers of two and three times a

stated sum were unenforceable penalties), trans. denied; Hahn v. Drees, Perugini &

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 Co., 581 N.E.2d 457, 463 (Ind. Ct. App. 1991) (voiding a treble-damages

clause); Seach v. Richards, Dieterle & Co., 439 N.E.2d 208, 215-16 (Ind. Ct. App.

1982) (voiding a treble-damages clause).

[8] Section 5.2 states in relevant part that, should the Buyers be

unable or unwilling to release or replace the personal guaranties
of all the Shareholders[,] then Buyer[s], jointly and severally[,]
will indemnify and hold harmless any Shareholder and will
reimburse the Shareholder three (3) times the amount of any loss,
liability, claim, damage, expense (including reasonable costs and
of investigation and defense and reasonable attorneys’ fees and
expenses) (collectively, “Damages”)[] arising from or in
connection with any personal guaranties of any named
Shareholders

Appellant’s App. Vol. II at 19 (emphasis added). In other words, where, as

here, Symons and the other Buyers failed to obtain the release or replacement of

the Sellers’ personal guaranties, the Buyers would owe the Sellers treble

damages. The trial court found that “Section 5.2 is not a penalty provision.”

Appellant’s App. Vol. III at 122. We cannot agree. The treble-damages clause

in Section 5.2 is a textbook example of an unenforceable penalty.

[9] Still, the Sellers assert that the treble-damages clause is not an unenforceable

penalty but is a permissible “agreed damages provision” properly applied in this

case. Appellees’ Br. at 16. The Sellers specifically contend that our reasoning

in Gershin, where we approved a liquidated-damages clause, should apply

here. Id. at 17. In Gershin, we said that liquidated-damages provisions are

“generally enforceable where the nature of the agreement is such that when a
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 breach occurs the resulting damages would be uncertain and difficult to

ascertain.” 685 N.E.2d at 1127. The Sellers assert that liquidated damages are

appropriate in this case because they have suffered economic losses that are

difficult to ascertain, including an impact upon their credit standing, an

impairment of their capital resources, opportunity costs, inconvenience in the

time and money required to litigate, and an emotional toll. Appellees’ Br. at

18-19. And the Sellers maintain that these losses were reasonably foreseeable

but are difficult to quantify and conclude that the agreed damages provision in

Section 5.2 represents the will of sophisticated contracting parties.

[10] But our inquiry into whether liquidated damages are appropriate does not end

with a determination that damages in the event of a breach would be uncertain

and difficult to ascertain. A stipulated sum will not be allowed as liquidated

damages unless it may fairly be allowed as compensation for the

breach. Gershin, 685 N.E.2d at 1127. We must also address and consider the

fundamental distinction between liquidated damages and a penalty and the

caveat in Gershin that, “where the sum sought to be fixed as liquidated damages

is grossly disproportionate to the loss which may result from the breach, the

courts will treat the sum as a penalty rather than as liquidated damages.” Id. at

1128.

[11] The liquidated damages in Gershin were calibrated and corresponded with the

magnitude of the breach. Id. at 1130. A damage award must reference some

fairly defined standard. Coffman, 906 N.E.2d at 210. Here, in contrast, there is

no apparent or discernable relationship or correlation between the treble

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 damages claimed and the losses actually suffered by the Sellers. Indeed, there is

no evidence that treble damages even remotely approximate the Sellers’ actual

damages. The treble damages are not commensurate with the magnitude of the

breach and are grossly disproportionate to the loss. Gershin, 685 N.E.2d at

1128. Thus, the treble-damages clause does not provide for liquidated damages

in lieu of performance but for payment of a penalty to secure performance of

the contract. Id. at 1127-28. Such damages are void and unenforceable, and we

reverse the trial court’s judgment awarding treble damages under Section 5.2.

Issue Two: Whether Section 7.1 Provides
for an Eighteen-Month Limitations Period

[12] Symons next asserts that the trial court improperly denied her numerous

requests for judgment on the Sellers’ action as untimely under Section 7.1. As

with the interpretation of Section 5.2, the interpretation of Section 7.1 is a pure

question of law that we review de novo. See, e.g., Heraeus Med., LLC v. Zimmer,

Inc., 135 N.E.3d 150, 152 (Ind. 2019) (citing Harrison v. Thomas, 761 N.E.2d

816, 818 (Ind. 2002)).

[13] Again, Section 7.1 states in relevant part:

7.1 Survival. Unless otherwise provided herein, all
representations, warranties, covenants, and obligations in this
Agreement . . . shall survive the Closing for a period of eighteen
(18) months following the Closing Date.

Appellant’s App. Vol. II at 21.

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[14] In their brief on appeal, the Sellers assert that the trial court properly denied

Symons’ numerous motions for judgment under Section 7.1 because “there is

no clear statute of limitations indicated” in that Section, which we take to mean

that Section 7.1 does not contain language that requires a complaint for breach

of contract to be filed within eighteen months of the closing. Appellees’ Br. at

26. We agree with the Sellers. The plain language of Section 7.1 speaks to the

Buyers’ obligations under the contract—those obligations that remained to be

performed by Buyers within the first eighteen months after the closing. 4 That

section does not shorten the time within which a complaint for breach of

contract can be filed. The Sellers’ complaint is not time barred. The trial court

properly rejected each of Symons’ numerous motions to the contrary, and we

affirm those decisions. 5

Issue Three: Whether the Evidence or the Contract’s Indemnification
Clause Supports a Judgment for the Sellers greater than $250,000

[15] Symons next asserts that the Sellers’ actual damages to IMS from the Buyers’

breach of Section 5.2 was $250,000, not $831,222, and, as such, there is

4
In fact, Section 7.1 only applies if the contract language at issue did not provide a different timeframe. But
Section 5.2, the only other provision at issue here, plainly required the Buyers to fulfill their obligations under
that provision within sixty days of closing. As such, it is also clear that Section 7.1 does not apply to the
Sellers’ complaint at all.
5
As we conclude that Section 7.1 does not create a period of limitations for the commencement of a breach-
of-contract action, we need not consider Symons’ arguments of error on issues of fraudulent concealment and
the tolling of any such purported limitations period.

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 insufficient evidence to support the jury’s award of damages. 6 In reviewing this

issue, we will not reverse if the damage award “is within the scope of the

evidence . . . .” Int’l Bus. Machs. Corp. v. State, 138 N.E.3d 255, 258 (Ind. 2019).

A damage award will not be reversed upon appeal unless it is based on

insufficient evidence or is contrary to law. Haas Carriage, Inc. v. Berna, 651

N.E.2d 284, 289 (Ind. Ct. App. 1995). In determining whether the award is

within the scope of the evidence, we may not reweigh the evidence or judge the

credibility of witnesses. Id.

[16] This issue turns on the stipulated judgment and the evidence of the Sellers’

installment payments made as provided under the judgment. The stipulated

judgment is an agreed entry and begins by stating that “the parties have entered

into a settlement agreement,” which the Illinois trial court adopted and ordered.

Appellant’s App. Vol. II at 120. An agreed entry must be construed in the same

manner as any other agreement or contract. Battershell v. Prestwick Sales, Inc.,

585 N.E.2d 1, 4 (Ind. Ct. App. 1992). And, again, the interpretation or legal

effect of a contract is a question of law to be determined by the court. Id. at 5.

[17] The parties stipulated to a judgment of $831,222 in favor of IMS and against the

Sellers, but enforcement of the stipulated judgment was stayed, and the

judgment was not, in fact, final. By its own terms the judgment was contingent

6
The question on appeal here is properly framed as whether sufficient evidence supports the jury’s award of
damages, and we reject the Sellers’ argument that Symons did not properly preserve this issue for our review.
See TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 224-25 (Ind. 2010).

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 upon the occurrence of future events. The judgment includes a settlement,

which limits the Seller’s liability to $250,000, provided that the Sellers make all

the monthly payments specified and otherwise comply with the terms of the

settlement agreement, in which event IMS will provide the Sellers with a release

and satisfaction of the full $831,222 judgment. Only if the Sellers should fail to

make the installments as agreed or otherwise fail to comply with the terms of

the stipulated judgment may IMS “proceed to enforce the Stipulated Judgment”

in the amount of $831,222, less any payments previously made. Appellant’s

App. Vol. II at 122.

[18] Thus, the only evidence before the jury at the time of trial was that the stipulated

judgment was an executory contract in which the outcome, one way or another,

was subject to conditions precedent that had not yet occurred. “An executory

contract is one in which a party binds himself to do or not to do a particular

thing, whereas an executed contract is one in which the object of the agreement

is performed and everything that was to be done is done.” Orbitz, LLC v. Ind.

Dep’t of State Revenue, 66 N.E.3d 1012, 1017 n.5 (Ind. T.C. 2016) (citing 2625

Bldg. Corp. v. Deutsch, 179 Ind. App. 425, 385 N.E.2d 1189, 1191 (1979)). There

was more to be done. The stipulated judgment was provisional. By its

unambiguous terms the $831,222 judgment was not a final judgment but a

contingent liability that might or might not become final depending upon

whether the Sellers performed the settlement agreement according to its terms.

Under paragraph 6 of the stipulated judgment, if the Sellers made the payments

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 and otherwise performed as agreed, IMS would provide the Sellers with a

release and satisfaction in full.

[19] At the time of the jury trial, the Sellers had made all the required installment

payments to IMS and had prosecuted this suit against the Buyers as stipulated.

Thus, at that time, enforcement of the judgment was stayed, and the total

amount of the Sellers’ actual loss to IMS under the stipulated judgment was not

more than $250,000, plus attorneys’ fees and costs. To support a damage award

above that amount, the Sellers contend that the “plain and unambiguous

language of the stipulated judgment” supports the jury award and that Symons

has “mischaracterized the settlement,” which is only a “conditional number.”

Appellees’ Br. at 42-43.

[20] We cannot agree with the Sellers’ reading of the stipulated judgment. As we

have noted, an agreed entry is a contract. When we interpret a contract, we

review the contract as a whole to ascertain the intent of the parties and construe

the language of the contract so as not to render any words, phrases, or terms

ineffective or meaningless. B&R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct.

App. 2017), trans. denied. Instead, the Sellers focus entirely upon the total

judgment amount to the exclusion of the settlement provisions, which, if

executed, would require a release and satisfaction of the judgment. These

provisions are interdependent and must be read together.

[21] When read correctly, it is clear that both the $831,222 total judgment amount

and the $250,000 settlement amount are subject to conditions precedent. A

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 condition precedent is a condition that “must be fulfilled before the duty to

perform . . . arises.” THQ Venture, Inc. v. SW, Inc., 444 N.E.2d 335, 339 (Ind.

Ct. App. 1983). Here, provided that the Sellers satisfy the conditions precedent

of making all the installment payments and otherwise complying with the terms

of the stipulated judgment, the settlement provisions control the amount of the

stipulated judgment. The total judgment amount supersedes the settlement

amount and becomes enforceable only should the Sellers fail to make the

installment payments as agreed or otherwise fail to comply with the terms of the

settlement agreement.

[22] The jury was correctly given the following final instruction:

If you decide that a party has breached the contract, the measure
of damages is the amount that would put the non-breaching party
in the same position he would have been had the contract been
fulfilled.

The non-breaching party may only recover the loss actually
suffered and should not be placed in a better position than if there
had been no breach of the contract.

Appellant’s Supp. App. Vol. II at 13. This instruction recognizes that the

appropriate measure of damages in a breach of contract case is the loss actually

suffered as a result of the breach. City of Jeffersonville v. Envt’l Mgmt. Corp., 954

N.E.2d 1000, 1015 (Ind. Ct. App. 2011). The non-breaching party is not

entitled to be placed in a better position than it would have been if the contract

had not been broken. Id. This means that the Buyers are not chargeable with a

loss any greater than the loss the Sellers have actually incurred. The settlement
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 contained in the stipulated judgment reduced the Sellers’ actual damages from

$831,222 to $250,000 and, in its operation and effect, limited both the Sellers’

liability to IMS and the Buyers’ liability to the Sellers under Section 5.2 of the

contract, again, provided, only that the Sellers perform as they agreed under

paragraph 6 of the stipulated judgment.

[23] In addition, Section 5.2 of the contract provides for the Buyers to indemnify

and hold Sellers harmless. Our Supreme Court has stated that “indemnification

clauses are strictly construed and the intent to indemnify must be stated in clear

and unequivocal terms.” Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind.

1995). To indemnify means to “reimburse . . . for a loss suffered.” City of

Hammond v. Plys, 893 N.E.2d 1, 4 n.2 (Ind. Ct. App. 2008) (quoting Black’s

Law Dictionary 772 (7th ed. 1999)). Indemnity agreements are contracts

subject to the rules and principles of contract construction. Henthorne v. Legacy

Healthcare, Inc., 764 N.E.2d 751, 756 (Ind. Ct. App. 2002). If the words of an

indemnity agreement are clear and unambiguous, they are to be given their

plain and ordinary meaning. Id. We will construe an indemnity agreement to

cover all losses and damages to which it reasonably appears the parties intended

it to apply. Id. In an indemnity agreement, a “hold harmless” provision is

synonymous with “indemnify” and signifies no separate duties. Id.

[24] The indemnification clause in Section 5.2 cannot be construed, strictly or

otherwise, to mean that the Buyers agreed to indemnify the Sellers for any loss

that the Sellers have not actually suffered. Indeed, such an interpretation

cannot be reconciled with the concept of indemnification. Section 5.2 provides

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 that in the event the Buyers should be unable or unwilling to release or replace

the guaranties of all the Shareholders, who are the Sellers, the Buyers “will

reimburse” the Sellers. The payment of “damages” in excess of the loss

actually suffered would not be an indemnification and reimbursement but a

windfall, that is, “[a]n unanticipated benefit.” Windfall, Black’s Law Dictionary

(11th ed. 2019). The language of the indemnification clause does not suggest,

much less clearly and unequivocally provide, that the agreement to indemnify

includes reimbursement for losses that have not been incurred. See, e.g., BC

Osaka, Inc. v. Kainan Inv. Grps., Inc., 60 N.E.3d 231, 234 (Ind. Ct. App. 2016)

(indemnification provisions are strictly construed and will not be held to

provide for an indemnification unless so stated in clear and unequivocal terms).

Again, it is axiomatic that a party injured by a breach of contract is limited in its

recovery to the loss actually suffered. Fowler v. Campbell, 612 N.E.2d 596, 603

(Ind. Ct. App. 1993). Thus, we hold that the damage award of $831,222 is

contrary to the plain meaning of the indemnification clause.

[25] The Sellers also speculate that economic conditions might cause them to miss a

timely installment payment between now and September 2021, in which case

IMS could seek the full $831,222 against the Sellers. But a fact finder “may not

award damages on the mere basis of conjecture and speculation.” Marathon Oil

Co. v. Collins, 744 N.E.2d 474, 482 (Ind. Ct. App. 2001). And, again, the total

judgment amount of $831,222 is subject to a condition precedent that has not

occurred, namely, the Sellers’ default on the settlement provisions. At the time

of trial, the Sellers had not incurred actual damages in excess of $250,000.

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[26] As such, we conclude that the evidence is not sufficient to support the jury’s

award of damages above $250,000. And neither would a damage award greater

than $250,000 constitute an indemnification and reimbursement of actual losses

incurred by the Sellers. Accordingly, neither the evidence nor the

indemnification clause supports a judgment for the Sellers on their breach-of-

contract claim in an amount greater than $250,000, plus attorneys’ fees and

costs. On both grounds, any judgment for a greater sum is contrary to law. 7

Issue Four: Award of Attorneys’ Fees and Costs

[27] Last, we turn to Symons’ argument on appeal that the trial court abused its

discretion when, apart from the award of damages, the court awarded

attorneys’ fees and costs to the Sellers. We review a trial court’s award of

attorney’s fees for an abuse of discretion. River Ridge Dev. Auth. v. Outfront

Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020). An abuse of discretion occurs

when the court’s decision either clearly contravenes the logic and effect of the

facts and circumstances or misinterprets the law. Id.

[28] As an initial matter, we note that the trial court tripled the Sellers’ award of

attorneys’ fees and court costs under Section 5.2 of the contract. As explained

in Issue One, the trial court’s judgment in this respect was erroneous, and we

reverse the trebling of those amounts accordingly.

7
It is possible that, in the future, the Sellers will fail to satisfy the conditions of the settlement agreement, in
which case they may have a claim for additional damages against the Buyers, but there was no such evidence
before the jury.

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[29] Still, Symons also asserts that the court abused its discretion in the

determination of the principal amount of the Sellers’ attorneys’ fees and costs.

Symons’ argument here is that the Sellers’ evidence of fees recites entries that

are too often “generic, vague, and/or ambiguous.” Appellant’s Br. at 41. But

the entries Symons complains of were accompanied by an affidavit of the

submitting attorney in which the attorney represented that those entries were in

connection with the Sellers’ matter, and they were sufficiently definite for the

court to determine a reasonable basis for the fee award. Accordingly, we

cannot say the trial court abused its discretion in its determination of the

principal amount of attorneys’ fees and costs to the Sellers.

Conclusion
[30] In sum, we affirm the trial court’s decisions denying Symons’ several motions

for judgment on the Sellers’ claims as untimely under Section 7.1, and we

affirm the court’s primary award of attorneys’ fees and costs to the Sellers.

However, we reverse the court’s award of treble damages, including the trebling

of attorneys’ fees and costs, under Section 5.2, and we conclude that a damage

award greater than $250,000 is not supported by the evidence, the stipulated

judgment, or the indemnification clause as a matter of law. We remand for the

trial court to recalculate the Sellers’ damages, attorneys’ fees, and costs in a

manner not inconsistent with this opinion. 8

8
We deny the Sellers’ request for an entry of appellate attorneys’ fees and costs.

Court of Appeals of Indiana | Opinion 20A-PL-395 | September 29, 2020 Page 19 of 20
[31] Affirmed in part, reversed in part, and remanded with instructions.

Bradford, C.J., and Mathias, J., concur.

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