R. Myers & Associates, LLC and Robert D. Myers a/k/a Rob Myers v. Adpoint, Incorporated, Joel Hall and Mary Hall ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 24 2014, 9:58 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
P. ADAM DAVIS MATTHEW E. DUMAS
Davis & Sarbinoff, LLP Hostetter & Associates
Indianapolis, Indiana Brownsburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
R. MYERS & ASSOCIATES, LLC and )
ROBERT D. MYERS a/k/a ROB MYERS, )
)
Appellants-Defendants, )
)
vs. ) No. 29A02-1305-PL-449
)
ADPOINT, INCORPORATED, )
JOEL HALL and MARY HALL, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Daniel J. Pfleging, Judge
Cause No. 29D02-1003-PL-365
September 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Adpoint, Incorporated (“Adpoint”) filed a complaint against R. Myers &
Associates, LLC and Robert D. Myers a/k/a Rob Myers (collectively “Buyer”) relative to
Buyer’s purchase of a business from Adpoint. Buyer counterclaimed against Adpoint,
and it also filed a third-party complaint against Adpoint’s two shareholders, Joel and
Mary Hall (“the Halls”). Following a bench trial, the trial court issued findings of fact
and conclusions thereon and judgment, which found in favor of Adpoint both on
Adpoint’s complaint and on Buyer’s counterclaim, and which denied Buyer’s third-party
complaint against the Halls. Buyer raises five issues that we consolidate and restate as:
whether Buyer’s default was justified such that the trial court’s findings of fact and
conclusions of law thereon and judgment in favor of Adpoint and the Halls (collectively
“Seller”) are clearly erroneous.
We affirm and remand.
FACTS AND PROCEDURAL HISTORY
In 2009, Adpoint was the owner and operator of a sign-making and printing
business called Sign-A-Rama, with locations in Fishers, Indiana (“the Fishers Store”) and
another in Carmel, Indiana (“the Carmel Store”). The Halls were the sole shareholders of
both stores; they purchased the Carmel Store in 2000 and the Fishers Store in 2006. In
May 2009, Adpoint entered into an Asset Purchase and Sale Agreement (“Purchase
Agreement”), agreeing to sell the Fishers Store to R. Myers & Associates, LLC (“Myers
LLC”). Myers LLC paid a portion of the purchase price in cash, and Adpoint financed
the balance of the purchase price via a Promissory Note (“Note”) dated May 8, 2009, in
the amount of $30,000.00. Robert D. Myers a/k/a Rob Myers (“Robert”), the sole
2
member of Myers LLC, executed the Note as a personal guarantor. Myers LLC executed
a Security Agreement that same date.
Under the terms of the Note, Myers LLC was to pay Adpoint in monthly
installments in the amount of $583.00. Beginning in January 2010, Myers LLC stopped
making the monthly payments. The Note provided that, in the event of a default, Adpoint
was entitled to declare the entire unpaid principal balance and all accrued unpaid interest
immediately due and payable, plus late charges, attorney’s fees and costs of collection.
The Security Agreement granted Seller a security interest in all inventory, machinery,
equipment, appliances, improvements, furniture, fixtures, and other tangible personal
property then-owned or after-acquired by Buyer that was located on or used in
connection with the Fishers Store, and it entitled Seller to declare the indebtedness
secured by the Security Agreement due and payable and allowed Seller to enter the
premises to take possession of the collateral.
In March 2010, Seller filed a complaint against Buyer for the breach of the
Purchase Agreement and Note stemming from the sale of Adpoint’s Fishers Sign-A-
Rama business. Buyer counterclaimed against Adpoint alleging “breach of the same
contract and for fraud” and brought a third-party complaint against the Halls alleging “the
same claims[.]”1 Appellants’ Br. at 4. A five-day bench trial was held in July and
September 2012. At trial, the Note and Purchase Agreement, including all schedules and
attachments, were admitted into evidence by joint stipulation.
1
Buyer’s Appendix does not include a copy of its Answer, Counterclaim, or Third-Party
Complaint, and those documents are not otherwise in the record before us.
3
In February 2013, the trial court issued findings of fact and conclusions thereon,
determining that Seller was entitled to judgment on its complaint, including interest and
attorney’s fees.2 The total judgment in favor of Seller and against Buyer was $86,595.43,
which included attorney’s fees, plus $8.85 in daily interest from September 6, 2012. The
trial court also denied Buyer’s counterclaim and third-party complaint. Buyer filed a
motion to reconsider, correct errors, vacate and/or modify the judgment, which the trial
court denied. Buyer now appeals. Additional facts will be supplied as necessary.
DISCUSSION AND DECISION
The essential elements of a breach of contract action are the existence of a
contract, a breach thereof, and damages. McKeighen v. Daviess Cnty. Fair Bd., 918
N.E.2d 717, 721 (Ind. Ct. App. 2009); Berkel & Co. Contractors, Inc. v. Palm & Assocs.,
Inc., 814 N.E.2d 649, 655 (Ind. Ct. App. 2004). In this case, no party alleges that a
contract did not exist or that there is any ambiguity in the contract terms. When a court is
called upon to interpret an unambiguous contract, it must give effect to the intention of
the parties as expressed in the four corners of the document. H & G Ortho, Inc. v.
Neodontics Int’l, Inc., 823 N.E.2d 718, 726 (Ind. Ct. App. 2005). The unambiguous
language of the contract is conclusive upon the parties to the contract and upon the
courts. Id. Here, the trial court determined that Buyer breached the contract and Seller
suffered damages. On appeal, Buyer argues that it was justified in ceasing to make
payment to Seller and did not breach the Purchase Agreement. Consequently, it claims,
2
We commend the trial court on the thoroughness of its Findings and Conclusions thereon, which
greatly facilitated our appellate review.
4
the trial court erred when it issued findings of fact and conclusions thereon that found
Buyer had breached the contract and Seller was entitled to judgment.
We begin by noting that, pursuant the parties’ written requests, the trial court
entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. On
appeal of claims tried by the trial court without a jury, the appellate court shall not set
aside findings or judgment unless clearly erroneous. Kesler v. Marshall, 792 N.E.2d 893,
895 (Ind. Ct. App. 2003), trans. denied. First, we consider whether the evidence supports
the findings, construing the findings liberally in support of the judgment. Id. Next, we
determine whether the findings support the judgment. Id. A judgment is clearly
erroneous when it is unsupported by the findings of fact and conclusions thereon. Id. In
applying this standard, we will neither reweigh the evidence nor judge the credibility of
the witnesses. Id. at 895-96. Rather, we consider the evidence that supports the
judgment and the reasonable inferences to be drawn therefrom. Id. at 896. We must
affirm the judgment of the trial court unless the evidence points incontrovertibly to an
opposite conclusion. Id.
Initially, we recognize Seller’s assertion that Buyer’s brief, essentially in total,
“fails to cite to the record or any authority to support [its] contentions and assertions.”
Appellees’ Br. at 4. We do not entirely disagree. Buyer provided this court with a
substantial amount of factual background and argument, but in many instances it fails to
identify exactly which of the trial court’s findings are unsupported by evidence or
otherwise explain how the findings and conclusions thereon were erroneous. A failure in
that regard results in waiver. Ind. Appellate Rule 46(A)(8). However, that said, we
5
prefer to decide cases on their merits and do so here. Thacker v. Wentzel, 797 N.E.2d
342, 345 (Ind. Ct. App. 2003).
Although Buyer asserts the general claim that the findings of fact and conclusions
thereon are “unsupported by applicable law,” the majority of its brief and argument
consists of factual matters; thus, we proceed with our analysis on the basis that Buyer’s
actual claim is that the trial court’s findings “ignore a majority of pertinent and
undisputed facts,” i.e., the findings are not supported by the evidence. Appellants’ Br. at
18-19. For purposes of organization and analysis, we divide Buyer’s position, that their
failure to pay was justified and that they did not breach the contract, into the following
four arguments: (1) Seller failed to transfer certain assets that should have been
considered assets included in the Purchase Agreement, in particular a Roland 5400
(printer) and QuickBooks bookkeeping software, and other computer software; (2) the
HP5000 Printer, located at the Fishers store and transferred with the sale, was obsolete or
otherwise defective and some computers lacked sufficient memory and did not function
properly; (3) the financial representations and warranties that Seller made in the Purchase
Agreement were not true, accurate, and complete such that Seller failed to provide full
disclosure regarding the financial condition of the Fishers Store; and (4) Seller did not
pay for snow removal at the Fishers Store that had occurred prior to the sale. We address
each argument in turn.
I. Transfer of Assets
In support of its argument that Seller failed to transfer all assets, Buyer relies on
portions of several of the transfer documents, such as Section 1.1 of the Purchase
6
Agreement. That Section, entitled “Transfer of Assets,” provided that Buyer was
purchasing the assets of the business, some of which were listed in that section, as well as
“[a]ll other items of personal property of any kind, tangible or intangible, owned by any
Seller and used in the operation of the Business.” Appellants’ App. at 76-77. Section 1.1
referred to assets set forth separately on Schedule 1.1(1), which specifically listed two
pages of items by category and provided also for the transfer of “all Assets identified in
the Transaction Documents and All Assets, including, but not limited to, equipment,
furniture, inventory, used in the operation of the Business or any kind or nature
whatsoever.” Id. at 101-03.
The primary item that Buyer asserts should have been transferred to them was the
Roland 5400, which is a digital printer that was at all relevant times located at the Carmel
Store. Buyer’s position with regard to the Roland 5400 is that when Seller operated the
Carmel and Fishers Stores, prior to the sale at issue, the Fishers Store would utilize the
Roland 5400 at the Carmel store to produce various printing jobs that could not be
completed on the HP5000, and therefore, it should have been transferred as part of the
sale because it was “used in the operation of the business,” a term used in the Purchase
Agreement. Id. at 77, 101.
On the subject of whether this piece of equipment should have been transferred,
the trial court found as follows: the list of assets in the Purchase Agreement did not
include the Roland 5400 printer (Finding 39); and the Roland 5400 was always located at
the Carmel Store and was never located at the Fishers Store, and it was not an asset of the
Fishers Store (Finding 40). Id. at 17.
7
It is undisputed that the Roland 5400 was not listed in Section 1.1 of the Purchase
Agreement or in Schedule 1.1(1), which specifically listed the equipment, furniture,
software and other inventory that was being transferred in the sale. Thus, we find the
evidence supports Finding 39.
It is also undisputed that the Roland 5400 was always located at the Carmel Store,
and thus that part of Finding 40 is clearly supported by the evidence.3 In Finding 40, the
trial court also found that the Roland 5400 was not an asset of the Fishers Store; Buyer
argues that this was not supported by the evidence because the Roland 5400 was “used in
the operation of the business” at the Fishers Store and thus constituted an “asset” of the
Fishers Store.
In support of their position that the Roland 5400 was “used in the operation of the
business,” Buyer called as a witness at trial Jon Buran, a former employee who worked at
the Fishers Store both for the Halls, for a year or so, and later as a store manager for
Robert. Buran testified that over 80% of all digital printing jobs that came into the
Fishers Store were for outdoor print jobs and that those projects were printed on the
Roland 5400 at the Carmel Store because the HP5000 could not handle those jobs. Buran
further testified, however, that most of the jobs that came into the Fishers store were not
for digital printing, but were for cut vinyl projects or other types of printing jobs.
3
Finding 40 also states that “Adpoint leases the Roland 5400 printer from a third party.”
Appellants’ App. at 17. Neither party makes any specific argument regarding this finding, and Buyer has
failed to satisfy its burden of establishing that that finding is not supported by the evidence. We note,
however, that according to the record before us, the HP5000 was, at some point, leased, but prior to the
sale in question was paid in full. Tr. at 385. While there was some discussion concerning whether a lease
payment for the Roland 5400 printer would be considered an in-house cost, such as ink and paper would
be, it was not clear whether that was a hypothetical inquiry. Id. at 703.
8
The Halls also testified at trial and explained that they used the HP5000 at the
Carmel Store from 2000-2006, until they purchased the Roland 5400. Around that time,
they also purchased the Fishers Store, and they moved the HP5000 to that location. They
acknowledged that the Roland 5400 was sometimes used to complete printing jobs that
originated at the Fishers Store, but the Roland 5400 was not required for the Fishers Store
to function. That is, the production of some jobs could have been outsourced to any other
vendor, such as Indy Imaging, and they sometimes were. Furthermore, Seller presented
evidence that the Fishers Store paid the Carmel Store for the use of the Roland 5400; the
use of the Roland 5400 was not simply part of the operation of the Fishers Store. At no
time prior to the sale was it represented that the Roland 5400, a printer housed at the
Carmel Store, would be transferred as part of the sale of the Fishers Store. We find that
the evidence supports the trial court’s Finding 40.
Buyer next argues that QuickBooks, a bookkeeping and accounting software
program, which was located at the Carmel Store, but was used to track income and
expenses for both the Fishers and Carmel Stores, was an asset of the Fishers Store and
should have been transferred to Buyer as part of its purchase of the Fishers Store. Buyer
argues that, as a result of it not being transferred in the sale, it had to purchase
QuickBooks in 2009 for $212.02.
The trial court’s findings with regard to QuickBooks are: the list of Assets being
sold did not include the QuickBooks software (Finding 39); a version of QuickBooks
software existed on a computer at the Fishers Store, which the Halls did not use, and it
had been transferred to them by the prior owners of the Fishers Store (Finding 41); Myers
9
LLC purchased a new QuickBooks software program in June of 2009 at a cost of $212.02
(Finding 42); Adpoint used QuickBooks software to track expenses and cost of goods
sold (Finding 98); and Mrs. Hall would enter sales data for both stores into the
QuickBooks software system (Finding 100). Appellants’ App. at 17, 23.
It is undisputed that the list of Assets in the Purchase Agreement and Schedule
1.1(1) do not include QuickBooks. At trial, Mr. Hall testified that Adpoint used
QuickBooks software to track sales and expenses for both the Fishers and Carmel Stores,
but that the QuickBooks software program that Seller used was located at the Carmel
Store. Tr. at 43. Mr. Hall testified that, before the sale, he had shown to Robert that
there was a version of QuickBooks at the Fishers Store, owned by the store’s prior owner
and not used by the Halls, and Hall told Robert that he could use it if he desired. Id. at
813. Robert testified at trial and agreed that Mr. Hall had told him prior to the sale that
QuickBooks was not part of the assets of the sale, and that Mr. Hall had also told him that
a version of QuickBooks existed at the Fishers Store, which had been used by a previous
owner and that Buyer was welcome to use that after it purchased the Fishers Store. Id. at
279. Buyer has failed to identify evidence or otherwise establish that the trial court’s
findings on the subject of the QuickBooks software was not supported by the evidence or
was clearly erroneous.
II. Condition of Certain Equipment
Buyer maintains that some equipment and software was not in usable condition at
the time of transfer and that Seller breached Section 2.6 of the Purchase Agreement,
which states, in pertinent part, that Seller was transferring assets that “are operable
10
without defects, and are transferred along with Seller’s warranty of merchantability,
fitness for a particular purpose, operability, capacity and condition.” Appellants’ App. at
80; Appellants’ Br. at 13.
In large part, Buyer’s argument is that the HP5000 printer, located at the Fishers
Store and transferred to Buyer as an asset of the sale, was obsolete and inoperable. Buyer
claims that, as a result, it was required to purchase an Epson printer for $31,495.00. The
trial court found: the HP5000 printer was an asset included in the sale of the Fishers
Store (Finding 65); the HP5000 was usable and functioning on the date of the transfer of
assets (Finding 66); ink and other supplies “are still available” for the HP5000 (Finding
67); and Myers LLC failed to establish that the HP5000 is an obsolete printer (Finding
68). Appellants’ App. at 19.
Buyer called as a witness Jim Jones (“Jones”), who owned a company that was a
Hewlett Packard authorized service and hardware provider. He testified that Hewlett
Packard (“HP”) stopped production of the HP5000 in 2002 and that parts and service
were available for five years thereafter, but that after 2007, HP was no longer
manufacturing parts for it. Tr. at 59. Upon cross examination, Jones agreed that
“obsolete” was an HP term of art for use when a machine was being phased out and that
the term did not mean that a printer was no longer useful. Id. at 67. Mr. Hall testified
that a printer that was the “same” as the HP5000 was still being manufactured in 2010,
although under another name, and that toner, ink, and parts were still being made for the
HP5000, perhaps by companies other than HP, but which were available online. Id. at
44. As to the capabilities of the HP5000, Mr. Hall stated that the HP5000 was fully
11
capable of making digital prints and had a higher resolution than the Roland 5400. It
could not, however, produce vehicle wraps, and it was not able to print on perforated
film. There was conflicting evidence about whether the HP5000 prints were suitable for
outdoor usage. In his testimony, Robert conceded he did not research the HP5000’s
capabilities prior the purchase of the Fishers Store. Id. at 328-29. Buyer has failed to
establish that the trial court’s findings with regard to the HP5000, namely that it was not
obsolete and was functional at the time of the transfer, were unsupported by the evidence
or were erroneous.
Buyer also claims that the Flexi Pro, Microsoft Office, Corel Draw, and Adobe
Illustrator – software programs that were transferred to them – were pirated or unusable
versions. As a result, Buyer claims, it was required to purchase an upgrade to the Flexi
Pro software at a cost of $800.76 in January 2010 and new Microsoft Office software in
March 2010 at a cost of $553.50. Buyer did not purchase additional or replacement
Adobe software or Corel software.
In its Findings, the trial court determined that Microsoft Office, Adobe Illustrator,
Flexi Pro, and the Corel software were all functioning properly upon execution of the
Purchase Agreement (Findings 44, 46, 48, 50); Buyer’s method of storage and
organization “made it difficult to find the disks needed to load the various pieces of
software when they were needed by [Fishers Store] employees[.]” (Finding 43); and
under the terms of the Purchase Agreement, Buyer was to pay Seller $5,000.00 after the
closing, but Buyer never paid that “retainage” to Seller (Findings 30, 31). Appellants’
App. at 17-18.
12
The evidence reveals that during the transition from the Seller’s ownership to
Buyer’s ownership, in or around May and June 2009, a representative of Sign-A-Rama
was on site at the Fishers Store to assist with equipment set up and training and that
Robert used the Flexi Pro software at that time and no mention was made of software not
operating properly. In November 2009, five months after the June 2009 sale, Buyer’s
computers crashed, and it needed licenses for the software in order to reinstall those
programs on the computers. At that time, Myers LLC notified Adpoint by letter that
there were problems with the various pieces of software and licenses were missing.
Adpoint maintained that it was all properly licensed and that Myers LLC had lost the
licenses.
With regard to the licenses, Mr. Hall testified that when he sold the Fishers Store
there was Flexi Pro software on the computer, which software came with his purchase of
the store in 2006, and that it was functioning when he sold the store to Buyer in 2009.
Mr. Hall stated that he left the license in a box at the Fishers Store when Adpoint sold it.
With regard to Adobe, Mr. Hall stated that a version of it likewise came on the computer
when he purchased the store, but that he bought an upgraded Adobe Illustrator program
and left the license in the Fishers Store when Adpoint sold it. With regard to the Corel
Draw software, Mr. Hall testified that he purchased it during his ownership of the Fishers
Store and left the license in the boxes at the store. With regard to the Microsoft Office,
Mr. Hall testified that some of the software was on the Fishers Store computers when he
bought the store, others he purchased when he upgraded the computers, and that the
licenses were left in boxes when he sold the Fishers Store. He conceded, however, that
13
the Microsoft Office licenses that he had possessed were for Indiana University software,
which he was entitled to use as a teacher for Ivy Tech and Indiana Wesleyan. Employee
Buran testified that during the time period that he worked for Robert at the Fishers Store,
the disks for the software were in different boxes and the wrong or mismarked cases and
were hard to find.
After Adpoint received the notice from Myers LLC in November 2009 that Buyer
was having issues with software, Adpoint, in an effort to resolve the matter, provided
Buyer with new software. Robert testified that Adpoint provided him with a pre-owned
version of Flexi Pro software in November 2009. The evidence reflects that the pre-
owned version of Flexi Pro software received in November 2009 was operational but that
Myers LLC elected to improve it by purchasing an upgrade to the software in January
2010. Adpoint also provided a pre-owned version of Adobe Illustrator, new Corel Draw
software, and new Microsoft Office software in or before May 2010. Robert stated that
he returned the Microsoft Office software to his attorney because he had already
purchased it in March 2010. Myers LLC kept and used the Corel Draw software and the
Adobe Illustrator software.
While there may have been issues associated with the software after the purchase
of the Fishers Store, Buyer has not established that any problems existed at the time of its
purchase of the Fishers Store or that Seller failed to provide proper licensing for the
software. Furthermore, as recognized by the trial court, Section 5.5(a) of the Purchase
Agreement provides that, in the absence of fraud, no amounts shall be payable by Seller
for breaches of representations or warranties unless the aggregate amount payable
14
exceeds $2,500.00. Appellants’ App. at 20 (Findings 69, 70). Buyer expended less than
that for its purchase of Microsoft, Flexi Pro and QuickBooks.
Buyer next alleges there were issues with the condition of the computers, namely
that the memory components of the computers were inadequate, such that the computers
were not working properly upon transfer. The trial court found that the computers were
functioning properly upon the execution of the Purchase Agreement in June 2009, and
that any computer repair costs were incurred during the work of the computer service
technician (Findings 53, 56). Id. at 18.
The evidence supports the fact that the computers were operational upon transfer
and during two weeks of on-site training by corporate Sign-A-Rama. In support of their
position that the computers were not functioning, Buyer called witness David Skelly,
whose job it was to sell and service personal computers. He had worked on the Fishers
Store’s computers in September and October 2009, after the sale at issue, and he testified
that at that time they were running “very slow.” Tr. at 79. He also replaced one or more
hard drives, and in the process of doing so, certain software programs, or portions of
them, were erased and had to be reinstalled, at which time Buyer encountered problems
with the licenses of the software, as described previously. Upon cross-examination,
Skelly agreed that the first time he worked on the computers was in September and he
had no knowledge of the condition of the computers in May or June 2009, the time of the
sale. He further conceded that Windows XP needed to be reinstalled in October because
of a program he had run on the computer in September. Buyer also presented the
testimony of employee Buran, who testified that the computers were “ancient” when he
15
worked for the Halls, so “were obviously out of date” when later he worked for Myers
LLC. Id. at 105. This evidence, however, does not establish that the computers were
defective or inoperable at the time of the transfer to Buyer. We find no error with regard
to the trial court’s findings as to the condition of the computers.
III. Financial Representations
As part of the transaction, Seller prepared and provided a profit and loss statement
covering the years 2007, 2008, and 2009 for the Fishers Store; that statement was
incorporated into the Purchase Agreement as Schedule 2.12. Appellants’ App. at 107-
109. Buyer claims that the financial representations and warranties that Seller made in
the Purchase Agreement were not true, accurate, or complete such that Seller failed to
provide full disclosure regarding the financial condition of the Fishers Store and that the
profit and loss statements “falsely and artificially increase[ed] the represented net profit”
of the Fishers Store. Appellants’ Br. at 33. The trial court entered a number of findings
with regard to the alleged financial misrepresentations, which Buyer lists in its brief and
alleges in a general fashion that such findings were in error. Appellants’ Br. at 29-30
(alleging trial court’s findings 5, 77-84, 91, 94-97, 101-104, 106-109 were in error).
Buyer does not, however, provide specific argument, authority, or support to explain or
identify why or how each finding is in error. The court of appeals will not become the
advocate for a party by addressing arguments that are too poorly developed. Thacker,
797 N.E.2d at 345. That said, the crux of Buyer’s position appears to be that it was not
made aware of the fact that the HP5000 was not used to complete all the printing jobs
that came into the Fishers store, some jobs were sent to the Carmel Store or another
16
outside vendor to be completed, and the Halls did not track those outsourced printing
jobs. The evidence at trial, however, was that the outsourced jobs were tracked. The trial
court found, and the evidence supports the findings, that the Fishers Store treated the
Carmel Store as a vendor, such that the Fishers location was invoiced, charged, and paid
for the use of the Roland 5400 (Findings 94 and 95). Appellants’ App. at 23.
Buran explained that, at the time of a purchase, he or another employee would
input the details of the order into the point-of-sale software called the CASper system.
Among other details, Buran would identify in the CASper system whether the printing
would be completed on the HP5000 or the Roland 5400, so that the production crew
would know where it was going to be printed; that is, the two printers were distinguished
in the point-of-sale recordkeeping system. Tr. at 156. At some date thereafter, Mrs. Hall,
who was the bookkeeper and had been since they purchased the Carmel Store in 2000,
would transfer information from CASper into QuickBooks. She testified that for those
occasions when the Fishers Store used the Roland 5400 at the Carmel Store to complete
its jobs, the Carmel Store would send an invoice to the Fishers Store to pay for the use of
it. The Carmel Store and the Fishers Store kept separate bank accounts, and the Fishers
Store would write a check for use of the printer that the Carmel Store would deposit in its
account. Mrs. Hall explained that from a bookkeeping standpoint, the use of the Roland
5400 was accounted for as an “outside sales” expense, meaning that the Fishers Store
incurred the expense of an outside vendor for digital imaging, whether that be the Carmel
Store or Indy Imaging or elsewhere, for the production of the product. Id. at 465, 467.
17
Mr. Hall likewise testified that the Fishers Store paid for the use of the Roland
5400. He testified that the Fishers Store revenue that appeared in the profit and loss
statements provided to Buyer reflected expenses that were or had been deducted for use
of the Roland 5400.
Buyer argues that there was testimony to the contrary. For instance, Buyer cites to
a portion of Mr. Hall’s deposition testimony that he did not consider the Carmel Store to
be a “vendor” to the Fishers Store because “it was all one company.” Tr. at 531. Mrs.
Hall at trial testified that, to the extent Mr. Hall did not characterize the Carmel Store as a
“vendor” to the Fishers Store, in terms of the Fishers Store’s usage of the Roland 5400,
he was incorrect from a bookkeeping standpoint because the Carmel Store invoiced the
Fishers Store, who would then pay for it. Buyer also presented at trial Buran’s testimony
that he was “pretty sure” the Carmel Store and the Fishers Store did not charge each other
for the use of the printers. Id. at 123. Buran conceded, however, that he “wouldn’t do
anything” with invoices, as they would come in the mail and be passed on to Mrs. Hall.
Id. at 132. The trial court heard the evidence and had the opportunity to evaluate the
credibility of the witnesses, including their knowledge of a particular facet of the
business, such as the bookkeeping and invoicing practices, and whether the use of the
Roland 5400 was considered an expense of the operation of the Fishers Store. It is not
within our province to reweigh the evidence. H & G Ortho, Inc., 823 N.E.2d at 729.
Prior to trial, Seller produced profit and loss statements. The trial court
determined that there was no evidence that the financial warranties provided to Buyer in
Schedule 2.12 were incorrect or misrepresented the revenue, expenses, or costs of goods
18
sold for the Fishers Store (Findings 105, 106, 107). Appellants’ App. at 24. Robert
conceded that he hired an accountant to review the financial information prior to the
purchase, and no errors or issues or concerns were raised at that time. Tr. at 332. The
profit and loss statements provided to Buyer prior to the sale included a category of
“business mix,” which referred to what portion of the Fishers Store’s business was from
inside sales versus outside sales, although according to Mr. Hall, Robert did not ever
inquire about the meaning or implication of those figures. Id. at 800; Appellants’ App. at
108.
Buyer has failed to establish that the trial court’s findings with regard to the
financial representations made to Buyer prior to the sale were unsupported by the
evidence or were in error.
IV. Snow Removal Bill
According to Buyer, Seller failed to pay a $1,327.69 bill for snow removal that
occurred during early 2009, at a time when Seller owned and operated the Fishers Store.
Buyer argues that Seller was in breach of the Purchase Agreement for its failure to pay
and that the trial court should have found Seller liable for the bill, legal fees, and costs.
Buyer maintains that “[p]ursuant to the terms of the Purchase Agreement, Seller was
responsible for all debts arising prior to the [p]urchase of the [the Fishers Store].”
Appellants’ Br. at 29. However, Buyer does not identify the applicable term(s) or
specific section(s) of the Purchase Agreement upon which it relies. As previously stated,
our appellate rules require more. See Ind. Appellate Rule 46(A)(8).
19
Nevertheless, we recognize that a copy of the invoice from the landlord for the
snow removal was admitted at trial without objection. Robert testified that the bill
covered snow removal in early 2009, before Myers LLC purchased the Fishers Store and
that Myers LLC paid the invoice. Tr. at 217-18. No other testimony or evidence was
presented on the matter. The trial court entered no finding or conclusion on the snow
removal issue. Because a copy of neither the counterclaim against Myers LLC nor the
third-party complaint against the Halls is included in the record before us, we do not
know with certainty what claims were raised therein.4 Given that there was
uncontradicted evidence presented at trial on the snow removal issue, and for the sake of
completeness and clarity, we remand to the trial court to enter specific findings and
conclusions on the matter. The findings of fact, conclusions thereon, and judgment are
affirmed in all other respects.
Affirmed and remanded.
BAKER, J., and ROBB, J., concur.
4
The trial court denied Buyer’s counterclaim and its third-party complaint, concluding that Buyer
failed to prove that Seller breached the Purchase Agreement. Appellants’ App. at 25, 27 (Conclusion II,
Judgment (B) and (C)). Assuming without deciding that Buyer’s claim for payment of the snow removal
is part and parcel of either of those pleadings, Buyer is appealing from a negative judgment and must
demonstrate that the trial court’s judgment is contrary to law. Huber v. Sering, 867 N.E.2d 698, 706 (Ind.
Ct. App. 2007), trans. denied. A judgment is contrary to law only if the evidence in the record, along
with all reasonable inferences, is without conflict and leads unerringly to a conclusion opposite that
reached by the trial court. Id.
20