concurring in part and dissenting in part.
Although I agree that this cause should be remanded to the trial court, I reach this result for very different reasons than those the majority offers. I respectfully dissent from the majority opinion because I believe that judicial estoppel does not apply in this case, and that S & B has waived its argument regarding the motion for sale of assets, but that the award of interest was a windfall of unacceptable proportions, thus requiring a remand to the trial court.
*39 I. Judicial Estoppel
Judicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted. Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234 (Ind.Ct.App.2004).
It is the general rule that allegations or admissions in pleadings in a former action or proceeding will ordinarily estop the party making them from denying their truth in a subsequent action or proceeding in which he is a party to the prejudice of his opponent where the usual elements of estoppel by conduct are present. Also, there must have been a determination of the prior' action, or, at least, the allegations or admission must have been acted on by the court in which the pleadings were filed or by the parties claiming the estoppel.
Id. at 234-35 (quoting Tobin v. McClellan, 225 Ind. 335, 346-47, 73 N.E.2d 679, 684 (1947)). I also note that:
A member, a manager, an agent, or an employee of a limited liability company is not personally liable'for the debts, obligations, or liabilities of the limited liability company, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company.
Ind.Code § 23-18-3~3(a).
S & B asserts that “[i]t is undisputed that Old Fort and it members took the position in Oldenberg’s bankruptcy case that the Oldenberg Note and Mortgage were subject to ‘significant and meritorious setoffs and claims....’” Appellant’s Br. p. 16 (emphasis added). However, the record reveals that Old Fort, LLC, not its members, made representations to the bankruptcy court. Pl.Ex. 31; Pl.Ex. 33; Pl.Ex. 34; Tr. p. 47-48. Although identity of parties is not necessarily required for the application of judicial estoppel, Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind.Ct.App.1998), my research reveals no Indiana authority in which judicial estop-pel has been used to preclude one party from asserting a particular position because a different party had made a. conflicting assertion or argument in a prior proceeding. Inasmuch as the members of a limited liability company are “not personally liable for the debts, obligations, or liabilities of the limited liability company,” I.C. § 23-18-3-3(a), I would hold that the members of Old Fort are not judicially estopped from asserting an allegedly contrary position.
Moreover, I note that the positions that 5 & B complains of are not inconsistent. Old Fort alleged before the bankruptcy court that it had been damaged by Olden-berg’s behavior because they had to pay for the real estate in Oldenberg’s stead. This is not inconsistent with the assertion of Old Fort’s members that they had been damaged by Oldenberg’s behavior to the sum of $233,630 because they were forced either to buy out the mortgage or bring a useless elaim against a defendant who was liquidating. Thus, I would find that the trial court correctly found that judicial es-toppel did not apply in this case.
II. Award of Principal Amount
Having concluded that judicial estoppel does not apply here, I would address S & B’s other arguments. S & B also contends that the trial court erred in awarding Old Fort a judgment for the entire original $233,630 principal amount of the Olden-berg Note and Mortgage. Specifically, S 6 B argues that because Old Fort’s members are judicially estopped to deny in this action the representations they made to the bankruptcy court in order to obtain the Oldenberg Note and Mortgage for the agreed price of $50,000, they cannot now receive a judgment of more than $50,000. *40However, because I would find that judicial estoppel- does not apply in this case, S & B’s argument must fail.
III. Award of $3.8 Million in Interest
Finally, S & B avers that the trial court erred by awarding to Old Fort’s members $8.8 million in default interest and late fees on a principal debt of only $233,630. Specifically, S <& B contends that the trial court failed to make any specific findings regarding its award of interest and that the award was an impermissible penalty.
Old Fort concedes in its appellate brief that the trial court improperly awarded the principal amount in addition to the $3.8 million, which was a total figure of principal and interest. Nonetheless, Old Fort asserts that the trial court could properly award the principal amount plus $3,575,493.09 in interest. However, the trial court in this case made no findings of fact on this issue whatsoever despite S & B’s request for special findings of fact pursuant to Trial Rule 52(A). When properly requested, a trial court is required to make complete special findings sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. Speed v. Old Fort Supply Co., Inc., 737 N.E.2d 1217, 1220 (Ind.Ct.App.2000). I would therefore remand to the trial court and order that special findings of fact be entered on this issue, and further order that this portion of the award be reconsidered.
That said, I also note that an award of $3!5 million on a principal amount of $233,630 appears to be a penalty of outrageous proportions.- The Oldenberg Note and Mortgage provides that it is to be governed by the law of the Commonwealth of Kentucky. By way of comparison, the case of In re Yost, 54 B.R. 818 (Bankr.W.D.Ky.1985), involved a five-year oil equipment lease under which the total rent due was $495,000. The defendant defaulted on the lease when $378,160 remained of the principal balance. The liquidated damages provision in the lease provided that the lessor.would have received “payment for 27 months of unearned rent and over $186,000 in late charges calculated at 24% per annum.” Id. at 822. Because the monthly rental payment was $8,250, this provision would therefore have entitled the plaintiff to recover $408,750 in liquidated damages.1 The bankruptcy court called this “a windfall of unacceptable proportions.” Id. at 822-23. If an award of liquidated damages that equals 83% of the total principal balance is an unacceptable windfall, surely an award of liquidated damages that is approximately eight and one half times greater than the principal amount is an impermissible penalty.2
In my view, in computing the amount of the award the trial court should have considered Kentucky Revised Statute section 360.040, which provides that a “judgment shall bear twelve percent (12%) interest compounded annually from its date.” This rate of interest, calculated from the date of default, would result in liquidated damages that are far more reflective of the actual harm suffered than the penalty in the contract yielded. Thus, I would hold that the trial court should recalculate the award to the extent that the judgment does not reflect the imposition of such an outrageous penalty.
. ($8,250 x 27) + $186,000 = $408,750
. $422,870.30 x 8.5 = $3,594,397.55