Purcell v. Southern Hills Investments, LLC

SHARPNACK, Judge,

concurring in result.

While I concur fully with the majority on the other issues in this case, I concur in result only on the issue whether Purcell is entitled to set off the $288,000 paid to Southern Hills in the Metro bankruptcy proceeding. I concur in the result reached by the majority that Purcell is not entitled to the setoff claim for $288,000, but for a different reason than the majority. I disagree with the majority in that it states that "there is no evidence supporting Purcell's contention that the damages ultimately covered in the bankruptcy settlement include damages for Metro's withholding of amounts owed to VillageNet." Op. at 1003. However, while there is some evidence supporting Purcell's contention, Purcell has not met his burden under our standard of review.

In challenging the trial court's decision, Purcell confronts a stringent standard of review. Purcell bore the burden to prove a partial satisfaction of the damages claimed by Southern Hills requiring a set-off. See Marques v. Mayer, 727 N.E.2d 768, 773 (Ind.Ct.App.2000), trans. denied. The trial court found against Purcell on this issue. Thus, Purcell appeals from a negative judgment. Id. Because Purcell appeals from a negative judgment, he must demonstrate that the trial court's judgment is contrary to law. Infinity Prod., Inc. v. Quandt, 810 N.E.2d 1028, 1031-1032 (Ind.2004), reh'g denied. A judgment is contrary to law only if the evidence in the record, along with all reasonable infer*1005ences, is without conflict and leads unerringly to a conclusion opposite that reached by the trial court. Id. at 1082. In conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and we must affirm the trial court's decision if the record contains any supporting evidence or inferences. Id.

There is some evidence supporting Purcell's contention that the damages ultimately covered in the bankruptcy settlement include damages for Metro's withholding of amounts owed to VillageNet. In the bankruptcy proceeding, Indiana Fiber* and Southern Hills reached an agreement, entitled, "SETTLEMENT AGREEMENT,4 which dismissed Southern Hills' bankruptcy claim and included a provision providing for a payment by Indiana Fiber of $288,000 to Southern Appellant's Appendix Vol. I at Hills. 210.

Southern Hills' claim in Metro's bank-ruptey proceeding is similar to its amended complaint in this case. Southern Hills described its claim in the bankruptcy proceeding as "aris[ing] out of Metro's wrongful withholding of amounts owed to Villag-Net [sic] Services, LLC." Id. at 218. Southern Hills' amended complaint states, in part, "Metro failed to pay VillageNet what it was entitled to receive from the payments made by AEP." Id. at 39.

Further, Southern Hills bankruptcy claim and its amended complaint in this case also share similar amounts. In the Metro bankruptcy proceeding, Southern Hills filed a proof of claim in the amount of $555,810.34. (Appellant's Appendix Vol. I at 217) The amended complaint states that "als a direct result of Purcell's breaches of fiduciary duties, Southern Hills sustained damages of $555,810.54." Id. at 40. Kent Rodgers, the CFO of Smithville Telephone, characterized the twenty-cent difference between the amounts as a "typo." Transcript Vol. II at 458-459.

Although some evidence exists that the $288,000 constituted a partial payment of the $555,810.54 claim, there is also evidence that the $288,000 could be for other things. The settlement agreement states, in part:

1. Upon the closing on the sale of substantially all of Metro's assets to Indiana Fiber ("Closing"), Indiana Fiber agrees not to pursue its rights to payment from Southern Hills of that certain account receivable listed as payable from Southern Hills to Metro and more fully described on Schedule 2.1 of the APA;

2.Indiana Fiber agrees to pay the sum of Two Hundred Eighty-Eight Thousand Dollars ($288,000) to Southern Hills ("Settlement Payment") as follows:

(a) One Hundred Sixty-Six Thousand Dollars ($166,000) paid on or before December 10, 2002;
(b) One Hundred Twenty-Two Thousand Dollars ($122,000.00) ("Deferred Payment") payable:
(i) from November 19, 2002 through the earlier of full payment of the Deferred Payment or November 19, 2004, by the proceeds from an increase of Southern Hills' percentage under the March 24, 2000 VillageNet Operating Agreement from 50% to 70%, with the excess over 50% reducing the amount payable;
ii) through Southern Hills' election through November 19, 2004 to apply all or part of the amount payable to purchase from Indiana Fiber indefeasible rights to use in a maximum of four strands of fiber with *1006such fiber not to be resold by Southern Hills, from Indiana Fiber, at an agreed price of Four Hundred Eight-Five Dollars ($485.00) per optical mile as measured by an Optical Time Domaine Reflectometer ("Agreed Mileage Price");
(c) In the event that Southern Hills does not receive the entire Deferred Payment by November 19, 2004, Southern Hills may purchase from Indiana Fiber indefeasible rights to use in a maximum of four strands of fiber with such fiber not to be resold by Southern Hills from Indiana Fiber at the Agreed Mileage Price up to the total amount of the unpaid balance provided that the indefeasible rights to use purchased would be purchased by November 19, 2004;
Notwithstanding the preceding provisions, Southern Hills may, through November 19, 2004, purchase from Indiana Fiber available indefeasible rights to use in a maximum of four strands of fiber with such fiber not to be resold by Southern Hills at the Agreed Mileage Price and, in its sole election, determine whether such purchase will be applied to the Deferred Payment.
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4. Southern Hills, on behalf of itself and on behalf of VillageNet, agrees that the Adversary Proceeding will be dismissed with prejudice as to Metro, which dismissal will be without prejudice to the right of Southern Hills, on behalf of itself and on behalf of Villa-geNet, to pursue claims against Andrew Purcell, which claims are expressly reserved, and that any and all liens, claims, and encumbrances including all UCC filings and utility mortgages, Southern Hills has asserted or may assert in and against the assets of Metro in the "Southern Loop" on behalf of itself or on behalf of VillageNet, are released and forever discharged, and that Southern Hills and VillageNet become general unsecured creditors of Metro.
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6. Southern Hills, in its own and in its capacity as a member of VillageNet, expressly and without reservation consents to the assignment by Metro of all of Metro's membership interests in VillageNet under the VillageNet Operating Agreement and upon Closing unreservedly accepts Indiana Fiber as a fully participating member in Villa-geNet as provided under the Villa geNet Operating Agreement with all voting and other rights and privileges thereto;
7. VillageNet agrees to release to Metro its indefeasible right of use in twelve dark optical fibers in the Southern Loop, such release to be effective only upon the execution by Metro of that certain Agreement by and between Metro and Cinergy Networks, LLC ("Cinergy") under which Cinergy will provide maintenance services to among others, the facilities within the Southern Loop;
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Appellant's Appendix Vol. I at 210-212. Based on the settlement agreement the $288,000 could relate to the bankruptcy claim of Southern Hills, the release of Southern Hills' claims against Metro assets in the "Southern Loop," the consent by Southern Hills to the assignment of Metro's interest in VillageNet to Indiana Fiber, or the release by VillageNet to Metro of VillageNet's indefeasible right to use of twelve dark optical fibers in the Southern Loop, or some combination of those *1007items. There is no evidence on which an allocation of the $288,000 can be made.

While there is some evidence supporting Purcell's contention, I cannot say that the evidence in the record is without conflict and leads unerringly to a conclusion opposite that reached by the trial court and the trial court's judgment is contrary to law. See, eg., Infinity Products, Inc., 810 N.E.2d at 1083 (holding that the trial court's judgment was not contrary to law); Marques, 727 N.B.2d at 775 (holding that "we cannot say that the trial court erred as a matter of law in denying [defendant]'s request for a set off").

. Indiana Fiber was to acquire Metro's assets in the bankruptcy proceeding.