BioConvergence, LLC, and Alisa K. Wright v. Julie Menefee ( 2018 )


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  •                                                                  FILED
    Jun 01 2018, 7:39 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
    Robert L. Burkart                                          Darren A. Craig
    Jean M. Blanton                                            Michele Lorbieski Anderson
    Ziemer Stayman Weitzel & Shoulders,                        Frost Brown Todd LLC
    LLP                                                        Indianapolis, Indiana
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    BioConvergence, LLC, and                                   June 1, 2018
    Alisa K. Wright,                                           Court of Appeals Case No.
    Appellants-Defendants,                                     53A04-1708-PL-1810
    Appeal from the Monroe Circuit
    v.                                                 Court
    The Honorable Judith A. Stewart,
    Julie Menefee,                                             Special Judge
    Appellee-Plaintiff.                                        Trial Court Cause No.
    53C01-1309-PL-1742
    Brown, Judge.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                 Page 1 of 54
    [1]   BioConvergence, LLC (“BioConvergence”) and Alisa K. Wright (“Alisa”)
    appeal the trial court’s January 12, 2017 order addressing summary judgment
    and denying their request for attorney fees and the trial court’s July 14, 2017
    order denying their claim for attorney fees. BioConvergence and Alisa raise
    two issues which we consolidate and restate as whether the trial court clearly
    erred or abused its discretion in denying their request for attorney fees. We
    affirm.1
    Facts and Procedural History
    [2]   Julie and Greg Menefee met Alisa and her husband, Lance, in 1992 and
    became friends. BioConvergence, a service provider to the life sciences
    industry, was organized in 2004 by Alisa, Lance, John Brooks, and Jeff
    Schwegman, had its grand opening in April 2006, and had its first full year of
    doing work in 2007. Since its inception, Alisa was a majority member of
    BioConvergence. In October 2005, Greg accepted Alisa’s invitation to join
    BioConvergence’s Board of Advisors. After joining the Board of Advisors,
    Greg signed a confidentiality agreement on October 18, 2005.
    [3]   In late 2007, Alisa contacted Greg and asked if he and Julie would be able to
    loan BioConvergence $400,000. Alisa told Greg and Julie that she had an
    agreement with “Chase for a line of credit that they backed off of and so she
    needed the money to be able to have operating capital for BioConvergence.”
    1
    On April 18, 2018, we held oral argument in Indianapolis. We thank counsel for their well-prepared
    advocacy. We also compliment Judge Stewart on her thorough orders.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                       Page 2 of 54
    Transcript Volume 4 at 96-97. On November 21, 2007, Alisa sent Greg an
    email message, which stated in part: “As you and Lance are meeting later this
    morning, you’ll want to take a look at this when you talk. This is a draft
    valuation and Blue & Co is doing a review on it. Based on the discussion I had
    with Blue, the valuation is in the ballpark.” Plaintiff’s Exhibit 60.
    [4]   On December 19, 2007, Alisa sent an email to Greg, which was addressed to
    “Greg and Julie” and stated in part:
    On behalf of the [BioConvergence] owners, we welcome you to
    our group and appreciate your contributions as we go about
    making [BioConvergence] a successful business venture!
    The plans are for the Menefees to become owners in Jan 2008.
    Until that time, they will help us meet short term cashflow needs
    by loans under promissory notes. Some additional details and
    action items are:
    *****
    3. Other
    a. Greg and Julie to decide who will make the capital
    contribution (Greg & Julie, Greg, Julie, Julie’s trust, etc.)
    b. Current valuation of the company confirmed by Blue & Co,
    BioC’s accounting firm, in December 2007 at $9,267,841 –
    setting the new value per unit at $131.05.
    c. $400,000 + $131.05/unit = 3052.39 B1 units or approximately
    4% of the company (total could vary based on interest accrued
    and how it is handled)
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 3 of 54
    Plaintiff’s Exhibit 68. In December 2007 and February 2008, Julie and Greg
    loaned BioConvergence $400,000 evidenced by promissory notes which were
    unsecured.
    [5]   On November 17, 2008, Julie, as the individual “in which Subscription is
    made,” and Alisa, CEO of BioConvergence, entered into a
    “BIOCONVERGENCE LLC CLASS B-1 UNIT SUBSCRIPTION
    AGREEMENT” (the “Subscription Agreement”). Plaintiff’s Exhibit 9. The
    agreement provided in part that Julie “subscribes for and agrees to purchase
    3,333 Class B-1 Units of membership interest (the ‘Units’) of BioConvergence
    LLC, an Indiana limited liability company (the ‘Company’), at a price of
    $120.00 per Unit, for a total purchase price of $400,000.00 (the ‘Purchase
    Price’).” 
    Id. [6] The
    Subscription Agreement states:
    2. Representation and Warranties of Undersigned. The
    undersigned hereby represents and warrants as follows:
    (a) All information provided to the Company by the undersigned
    is true and correct in all respects as of the date hereof.
    (b) The undersigned has sufficient knowledge and experience in
    business and financial matters to evaluate the merits and risks of
    an investment in the Company.
    (c) The undersigned has been afforded access to all material
    books, records and contracts of the Company, and the
    undersigned has had an opportunity to ask questions of and
    receive answers from the Company, or a person or persons acting
    on its behalf, concerning the terms and conditions of this
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018      Page 4 of 54
    investment; and all such questions have been answered to the full
    satisfaction of the undersigned.
    *****
    (e) The undersigned understands that the sale of the Units has
    not been registered under the Securities Act of 1933, as amended
    (the “Securities Act”), or any state securities law in reliance on
    an exemption therefrom for non-public offerings and further
    understands that the sale of the Units has not been approved or
    disapproved by the United States Securities and Exchange
    Commission, or any other federal or state agency.
    (f) The undersigned is acquiring the Units for the undersigned’s
    own account, for investment purposes only, and not with a view
    to the sale or other distribution thereof, in whole or in part, and is
    aware that there are substantial restrictions on the transferability
    of the Units. The undersigned must bear the economic risk of an
    investment in the Units for an indefinite period of time because
    the sale of the Units has not been registered under the Securities
    Act, and therefore, the Units cannot be sold unless such sale is
    subsequently registered under the Securities Act or an exemption
    from such registration is available. The undersigned has no right
    to require the Company to (i) register the Units under federal or
    state securities law at any time, or join in any future registration,
    or (ii) take the action required to make Rule 144 under the
    Securities Act available for resale of the Units.
    (g) The undersigned agrees that the Units purchased will not be
    sold, transferred, pledged or hypothecated without registration
    under the Securities Act and any applicable state securities laws,
    or until the undersigned has obtained an opinion of counsel
    satisfactory to the Company that such registration is not required
    in connection with such transaction.
    (h) The undersigned agrees that any certificate representing the
    Units may contain the following legend:
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018      Page 5 of 54
    “THE SECURITIES REPRESENTED HEREBY
    WERE ACQUIRED FOR INVESTMENT ONLY
    AND NOT FOR RESALE, SUCH SECURITIES
    HAVE NOT BEEN REGISTERED UNDER THE
    SECURITIES ACT OF 1933, AS AMENDED, OR
    ANY STATE SECURITIES LAW
    (COLLECTIVELY, THE “SECURITIES LAWS”).
    SUCH SECURITIES MAY NOT BE SOLD,
    ASSIGNED, TRANSFERRED, PLEDGED OR
    HYPOTHECATED UNLESS (1) THE SALE OF
    SECURITIES IS FIRST REGISTERED UNDER
    THE SECURITIES LAWS, OR (2) THE
    COMPANY SHALL HAVE RECEIVED AN
    OPINION OF COUNSEL SATISFACTORY TO
    THE COMPANY THAT REGISTRATION
    UNDER THE SECURITIES LAWS IS NOT
    REQUIRED.”
    The undersigned further agrees that the Company may issue stop
    transfer instructions to its transfer agent (if any) or make a
    notation to such effect on its appropriate records.
    (i) The undersigned agrees that no commission or other
    remuneration shall be paid to any person in connection with the
    offer or sale of the Units.
    (j) The undersigned falls within one or more of the categories
    indicated below by the Subscriber’s initials next to each
    applicable category (INITIAL ALL THAT ARE
    APPLICABLE):
    __√__             Individual $1,000,000 Net Worth Test. Any natural
    person whose net worth, or joint net worth with that
    person’s spouse, at the time of the Subscriber’s
    purchase exceeds $1,000,000.
    __√__             Individual $200,000 Income Test. Any natural
    person who had an individual income in excess of
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018      Page 6 of 54
    $200,000 in each of the two most recent years or a
    joint income with that person’s spouse in excess of
    $300,000 in each of those years and who has a
    reasonable expectation of reaching the same income
    level in the current year.
    _____             Other Persons. Persons not meeting any of the
    above, but otherwise acceptable to the Company.
    Not more than 35 such other persons may be
    accepted.
    The foregoing representations and warranties shall be true and
    accurate as of the date hereof, and as of the date of delivery of the
    Purchase Price to the Company and shall survive such delivery.
    3. Representations and Warranties of the Company.
    *****
    5. Indemnification.
    (a) The undersigned acknowledges that the undersigned
    understands the meaning and legal consequences of the
    representations and warranties contained in paragraph 2 hereof,
    and he hereby agrees to indemnify and hold harmless the
    Company and each director, officer, employee and agent thereof
    from and against any and all loss, damage or liability due to or
    arising out of breach of any representation or warranty of the
    undersigned contained in this Subscription Agreement.
    (b) The Company acknowledges that the Company understands
    the meaning and legal consequences of the representations and
    warranties contained in paragraph 3 hereof, and hereby agrees to
    indemnify and hold harmless the undersigned and his heirs,
    personal representatives and assigns from and against any and all
    loss, damage or liability due to or arising out of breach of any
    representation or warranty of the Company contained in this
    Subscription Agreement.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 7 of 54
    
    Id. [7] In
    July 2012, Alisa called Greg and asked for Julie, but she was not there, and
    Alisa told Greg that the unit value for BioConvergence had dropped to $15.50.
    Greg received a power of attorney and requested documents from
    BioConvergence.
    [8]   On August 12, 2013, Julie filed a complaint against BioConvergence and Alisa
    asserting: Count I, injunction to compel production of corporate books and
    records; Count II, securities fraud; Count III, fraud; and Count IV, breach of
    fiduciary duty. Julie’s complaint alleged that facts common to all counts
    included in part that Alisa, on behalf of BioConvergence, represented that the
    value of the class B units was $120 per unit pursuant to a valuation prepared by
    Blue & Company, LLC, but “[o]n information and belief, Blue & Company did
    not prepare a valuation of [Julie’s] Class B Units.” Appellants’ Appendix
    Volume 2 at 64.
    [9]   On December 8, 2014, Julie filed an amended complaint alleging: Count I,
    securities fraud; Count II, fraud; and Count III, breach of fiduciary duty. With
    respect to Count I, securities fraud, Julie cited Ind. Code § 23-19-5-1 and
    alleged that BioConvergence and Alisa omitted to state a material fact
    necessary in order to make the statements not misleading, Alisa knew the
    valuation was not prepared by Blue & Company when she made the statement
    to her, Alisa knew that Julie’s units were not worth $120 a unit when she sold
    her 3,333.33 units for $400,000, and Julie relied on Alisa’s false statements
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 8 of 54
    when she purchased the class B units. With respect to Count III, breach of
    fiduciary duty, Julie alleged that Alisa, as an officer and majority member in
    BioConvergence, owed fiduciary duties to Julie, a minority member in
    BioConvergence, and that Alisa breached her fiduciary duties by intentionally
    misrepresenting the value of Julie’s units, intentionally misrepresenting that
    Julie’s units were valued at $120 a unit by Blue & Company, and “willfully
    mismanaging BioConvergence, among other breaches.” 
    Id. at 73.
    [10]   On January 30, 2015, BioConvergence and Alisa filed an answer to Julie’s
    amended complaint and a counterclaim which alleged that Julie breached the
    Subscription Agreement. BioConvergence and Alisa denied that Alisa told
    Julie that a valuation was prepared by Blue & Company. They asserted twenty-
    one affirmative defenses. They also asserted a counterclaim alleging that the
    Subscription Agreement included representations by Julie that she had access to
    all BioConvergence records and the opportunity to ask questions concerning the
    investment which were answered to her satisfaction and that she agreed to
    indemnify BioConvergence and its officers, directors, agents, and employees
    due to any breach of representation in the Subscription Agreement. They
    asserted that on November 4, 2014, Julie testified in a deposition that her
    “claims relating to her purchase of the [BioConvergence] B-1 Units in
    November 2008 and her ownership thereof are based on information lacking
    from [BioConvergence] in November 2008, that [BioConvergence] documents
    available to her in November 2008 which she chose not to review were not
    accurate and an alleged diminution of value of her [BioConvergence] B-1
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 9 of 54
    units.” 
    Id. at 83.
    They asserted that, “[a]s a result of her actions and omissions,
    Julie [] has breached the Subscription Agreement” and that they were “entitled
    to relief under the Subscription Agreement including indemnity by Julie [] and
    to recover their damages, including attorneys’ fees and expenses, incurred in
    defending Julie[’s] Complaint as a result of Julie[’s] breach of the Subscription
    Agreement.” 
    Id. [11] In
    her Supplemental Answers to Defendants’ Third Set of Interrogatories dated
    June 1, 2015, Julie was asked to “[s]pecify in detail each fact upon which [she]
    base[d] the allegation in Count III of [her] Amended Complaint that Alisa []
    willfully mismanaged [BioConvergence], the person from whom [she] obtained
    information concerning the same, and the date of each act or omission [she]
    claimed constitutes willful mismanagement.” 
    Id. at 189.
    Julie answered:
    Answer:
    [Julie] objects to this interrogatory as duplicative of questions
    that were asked and answered by Julie Menefee and Greg
    Menefee (in his capacity as Power of Attorney for Julie Menefee)
    at their depositions in this matter. [Julie] further objects to this
    interrogatory as seeking premature disclosure of expert opinions
    from [Julie].
    Supplemental Answer:
    Subject to, and without waiving her objections, [Julie] states that
    Alisa [] willfully mismanaged [BioConvergence] by
    misrepresenting that [BioConvergence’s] accounting firm, Blue &
    Co., performed valuations of [BioConvergence] that Blue & Co.
    did not perform; setting the price of [BioConvergence] units
    without a rational basis (For example, Alisa [] approved
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 10 of 54
    [BioConvergence’s] purchase of units from her husband, Lance
    Wright in 2010 and 2011 for $140 per unit and sold the same
    units to Kathy Eddy in 2010 and 2011 for $140 per unit, but only
    paid Kathy Eddy $15.50 per unit when [BioConvergence] bought
    back those same units from Kathy Eddy in 2012.); manipulating
    [BioConvergence’s] financials to make it appear that
    [BioConvergence] was profitable when it was not; failing to be
    present at [BioConvergence’s] offices; failing to stay informed
    about [BioConvergence’s] operations; failure to make decisions
    regarding the direction of [BioConvergence]; paying above-
    market rent to Great Oak Tree (a company that is partially
    owned by Alisa []); withholding information from members of
    [BioConvergence] about [BioConvergence’s] financial condition;
    not holding annual member meetings; misrepresenting the
    valuation of [BioConvergence] during member meetings; firing
    key [BioConvergence] staff members without cause; filling all of
    the positions on [BioConvergence’s] board of directors beyond
    her own position with paid consultants; taking actions to alienate
    [BioConvergence’s] major client Eli Lilly; and spending excessive
    [BioConvergence] funds on attorneys’ fees.
    
    Id. at 189-190.
    [12]   On July 17, 2015, BioConvergence and Alisa filed a motion for summary
    judgment. On September 18, 2015, Julie filed a response in opposition to the
    motion.
    [13]   On April 6, 2016, the trial court entered an order which states:
    Plaintiff’s Motion for Summary Judgment on the Amended
    Counterclaim for Breach of Contract and Defendants’ Cross
    Motion for Summary Judgment on the Amended Counterclaim
    as to Liability
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 11 of 54
    [I]n her complaint, Julie Menefee does not claim that prior to her
    purchase of the units the Defendant failed to provide her with the
    valuation or that Julie Menefee otherwise did not have access to
    the records. In the Subscription Agreement, she does not
    represent that she reviewed all of the available records. Her
    claim that the valuation was fraudulent is not a breach of the
    representations she made in Section 2(c) of the Subscription
    Agreement.
    Defendants also assert Julie Menefee breached her
    representations in Section 2(c) of the Subscription Agreement by
    claiming in her Amended Complaint that she relied on an alleged
    representation that BioConvergence, LLC’s accounting firm
    “prepared” the $120 valuation. Defendants argue Julie Menefee
    had access to all BioConvergence, LLC records; through her
    power of attorney she had received the $120 valuation; and she
    was advised BioConvergence, LLC prepared the valuation and
    the accountant only reviewed it. Consequently, Defendants
    argue her claim that she relied on who prepared the valuation
    rather than the valuation itself breaches Section 2(c) where she
    represented she had access to the valuation and the opportunity
    to review it and ask questions of BioConvergence, LLC or the
    accountant.
    Again, the court finds no genuine issue of material fact with
    respect to this claim. In her complaint, Julie Menefee does not
    claim that prior to her purchase of the units she did not have
    access to the valuation nor that she did not have the opportunity
    to review it or ask questions regarding the valuation. In the
    Subscription Agreement she does not represent that she relied
    only on the records she reviewed and/or were available to her.
    Her claim that Alisa Wright represented to her that the
    accountant prepared the valuation and that she relied on this
    verbal representation does not constitute a breach of Section 2(c)
    of the Subscription Agreement.
    Defendants’ Motion for Summary Judgment on the Amended
    Complaint
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 12 of 54
    Defendants assert Plaintiff’s fraud claims and breach of fiduciary
    duty claim are not actionable as Plaintiff cannot rely on
    expressions of opinion and because Plaintiff had access to all
    information necessary to review the valuation methodology.
    Defendants claim Plaintiff’s willful mismanagement claim fails
    because Plaintiff is attempting to assert a derivative claim
    without requisite authority and because she lacks evidence to
    support the claim.
    1. Count I Securities Fraud
    In Count I of her complaint, Plaintiff alleges the Defendants
    violated the Indiana Securities Act, I.C. 23-19-5-1 by informing
    Plaintiff before her purchase of the units of BioConvergence,
    LLC that the units were valued at $120 per unit by Blue & Co.,
    LLC. Defendants first assert that because valuations and
    opinions of value are not actionable, a representation as to who
    prepared the valuation is not material and cannot form the basis
    for a securities fraud claim. “Expressions of opinion cannot be
    the basis for an action in fraud.” Wheatcraft v. Wheatcraft, 
    825 N.E.2d 23
    , 30-31 (Ind. Ct. App. 2005) (internal citation omitted).
    Because statements of value are regarded as mere expressions of
    opinion, Plaintiff cannot state a claim for actionable fraud based
    upon Defendants’ representation regarding the units’ valuation.
    
    Id. The court
    does not read Count I of the Amended Complaint
    to assert a claim for securities fraud based on the Defendants’
    alleged misrepresentation of the value of the BioConvergence,
    LLC units, rather on the alleged misrepresentation that the
    valuation was prepared by Blue & Co., LLC. However, to the
    extent Count I may be read to assert a claim for securities fraud
    based on the Defendants’ alleged misrepresentation of the value
    of the BioConvergence, LLC units, Defendants are entitled to
    summary judgment.
    The court further finds, however, that Defendants are not entitled
    to summary judgment on Count I to the extent it asserts a claim
    for securities fraud based on the alleged misrepresentation that
    the $120 valuation was prepared by Blue & Co., LLC. The court
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 13 of 54
    finds the Defendants have not met their burden on summary
    judgment of establishing that this factual issue is not material
    under the summary judgment standard or under the standard
    applied to securities fraud claims.
    Defendants also assert Plaintiff could not reasonably rely on any
    representations because she had access to all BioConvergence,
    LLC information and failed to conduct any due diligence in
    assessing her investment in BioConvergence, LLC. Defendants
    assert that liability under the securities laws exists only when
    there is a substantial likelihood that the misrepresentation
    significantly altered the total mix of information that the investor
    possessed.
    In general, a person relying on a representation, “is bound to use
    ordinary care and diligence to guard against fraud; however, the
    requirement of reasonable prudence in business transactions is
    not carried to the extent that the law will ignore an intentional
    fraud practice(sic) on the unwary.” Soft Water Utilities, Inc. v.
    LeFevre, 
    308 N.E.2d 395
    , 398 (Ind. App. 1974). See also,
    Teamsters Local 282 Pension Trust Fund v. Angelos, 
    762 F.2d 522
    (7th
    Cir. 1985). The Plaintiff claims such an intentional fraud,
    claiming that Defendant Wright represented Blue & Co, LLC
    had prepared the valuation when Ms. Wright knew the
    representation to be false.
    However, the courts in both LeFevre and Angelos recognized that
    liability is not absolute even with an intentional
    misrepresentation. The Seventh Circuit in Angelos recognized
    three circumstances under which even lies are not actionable.
    However, none of those circumstances have been shown to exist
    in this case so as to warrant summary judgment. Defendants’
    designated materials do not establish that any lie was
    contradicted by written truthful information; that the alleged lie
    or omission did not significantly affect the total mix of Plaintiff’s
    information; or that the missing information was more readily
    accessible to Plaintiff than to Defendant. See, 
    Angelos, 762 F.2d at 530
    . In LeFevre, the court noted that “[a] person has a right to
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 14 of 54
    rely upon representations where the exercise of reasonable prudence
    does not dictate otherwise.” Soft Water Utilities, Inc. v. 
    LeFevre, supra, at 398
    , citing, Voorhees v. Cragun, 
    112 N.E. 826
    (Ind. App. 1916)
    (emphasis added.) The court finds that a genuine issue of
    material fact exists as to whether Plaintiff’s asserted reliance on
    Defendant Wright’s alleged intentional misrepresentation
    occurred “where the exercise of reasonable prudence does not
    dictate otherwise.” 
    Id. Consequently, Defendants
    have not met
    their burden on summary judgment.
    Defendants also assert that Plaintiff’s securities fraud claim is
    time barred. Pursuant to I.C. 23-19-5-9(g), Plaintiff was required
    to bring her action for securities fraud within three years of
    Plaintiff’s discovery of the violation. Defendants’ designated
    materials do not establish that Plaintiff should have known of the
    injury prior to July 2012 when Plaintiff was informed the value of
    her units had dropped from $140 to $15.50. The action was
    commenced within three years of July 2012. Defendants’ motion
    for summary judgment on this issue is denied.
    2. Count II Common Law Fraud
    Count II of Plaintiffs’ [sic] Amended Complaint asserts common
    law fraud based on the alleged intentional misrepresentation by
    Defendant Wright that Blue & Co., LLC had prepared the $120
    valuation. Count II also asserts that Defendant Wright knew the
    units were not worth $120 when she sold them to Julie Menefee.
    Similar to the securities fraud claim, the court finds that to the
    extent Count II may be read to assert a claim for fraud based on
    the alleged misrepresentation of the value of the
    BioConvergence, LLC units, Defendants are entitled to summary
    judgment, but that Defendants are not entitled to summary
    judgment to the extent Count II asserts a claim for fraud based
    on the alleged misrepresentation that the $120 valuation was
    prepared by Blue & Co., LLC. Defendants have failed to
    establish as a matter of law that the alleged misrepresentation by
    Alisa Wright is not actionable nor that as a matter of law Plaintiff
    was not entitled to rely on that representation.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018         Page 15 of 54
    3. Breach of Fiduciary Duty
    Count III of Plaintiffs’ Amended Complaint claims that Alisa
    Wright, as an officer and majority member of BioConvergence,
    LLC, owed fiduciary duties to Plaintiff as a minority member,
    and that Defendant Wright breached this duty by intentionally
    misrepresenting the value of the units, intentionally
    misrepresenting that the units were valued at $120 by Blue &
    Co., LLC, and willfully mismanaging BioConvergence, LLC. In
    seeking summary judgment, Defendants assert that Defendant
    Wright owed no fiduciary duty to Plaintiff prior to Plaintiff
    becoming a minority member of BioConvergence, LLC.
    Defendants also assert that as a matter of law, Alisa Wright did
    not have the authority to act on behalf of BioConvergence, LLC
    in her capacity as a member.
    Plaintiff relies on the case of Fiederlein v. Boutselis, 
    952 N.E.2d 847
            (Ind. Ct. App. 2011) to assert that Defendant Wright owed Julie
    Menefee fiduciary duties as a potential member of a closely-held
    limited liability company during negotiation of their
    membership. However, in Fiederlein, the aggrieved party already
    was a member of the LLC when negotiations in question were
    conducted. Nothing in Fiederlein establishes a fiduciary duty to
    potential members of a limited liability company. The court
    finds as a matter of law that Defendant Wright owed no fiduciary
    duty to Julie Menefee prior to Julie Menefee’s membership in
    BioConvergence, LLC. Consequently, Defendant is entitled to
    summary judgment on the breach of fiduciary duty claim to the
    extent it is based on an alleged misrepresentation of the value of
    units or who prepared the valuation prior to Julie Menefee
    purchasing her Class B units on November 17, 2008.
    Once Plaintiff became a member of BioConvergence, LLC, the
    members were in a fiduciary relationship to each other and were
    required to deal fairly, honestly, and openly with the company
    and the other members. See, Riggin v. Rea Riggin & Sons, Inc., 
    738 N.E.2d 292
    , 307 (Ind. Ct. App. 2000); Barth v. Barth, 
    659 N.E.2d 559
    , 561 (Ind. 1995); Purcell v. Southern Hills Investment, LLC, 847
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 16 of 
    54 N.E.2d 991
    , 997 (Ind. Ct. App. 2006) (holding “common law
    fiduciary duties, similar to the ones imposed on partnerships and
    closely-held corporations, are applicable to Indiana LLCs.”)
    “This duty attaches to acts done in the capacity of a director,
    officer, or shareholder.” 
    Riggin, 738 N.E.2d at 307
    .
    Consequently, Defendant Wright owed a fiduciary duty to
    Plaintiff regardless of whether Defendant Wright was acting as
    CEO or a member of BioConvergence, LLC.
    Defendant Wright asserts Julie’s claim for breach of fiduciary
    duty by willful mismanaging BioConvergence, LLC constitutes,
    or can only be brought as, a derivative action, not a direct action.
    However, the court finds Plaintiff’s claim states a direct action
    and may be permissible. Our Indiana Supreme Court has
    adopted the American Law Institute rule as follows:
    In the case of a closely held corporation, the court in
    its discretion may treat an action raising derivative
    claims as a direct action, exempt it from those
    restrictions and defenses applicable only to derivative
    actions, and order an individual recovery, if it finds
    that to do so will not (i) unfairly expose the
    corporation or the defendants to a multiplicity of
    actions, (ii) materially prejudice the interests of
    creditors of the corporation, or (iii) interfere with a
    fair distribution of the recovery among all interested
    persons. A.L.I., Principles of Corporate Governance §
    7.01(d).
    
    Barth, supra
    , 659 N.E.2d at 562. Defendants have failed to show
    as a matter of law that Plaintiff’s direct action is not permissible
    in this case.
    The court finds the Defendant has failed to establish an absence
    of genuine issues of material fact regarding whether Defendant
    Wright willfully mismanaged BioConvergence, LLC and that
    summary judgment is not appropriate on the breach of fiduciary
    duty claim regarding alleged willful mismanagement.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 17 of 54
    IT IS THEREFORE ORDERED that Plaintiff’s Motion for
    Summary Judgment on the Amended Counterclaim for Breach
    of Contract is granted, and Defendants’ Cross Motion for
    Summary Judgment on the Amended Counterclaim as to
    Liability is denied.
    IT IS FURTHER ORDERED that Defendants’ Motion for
    Summary Judgment on Plaintiff’s Amended Complaint is
    granted in part and denied in part. Defendants’ motion is
    granted to the extent that Count I and Count II assert claims for
    securities and common law fraud based on the Defendants’
    alleged misrepresentation of the value of the BioConvergence,
    LLC units. Defendants’ motion for summary judgment on
    Counts I and II is denied in all other regards, including with
    respect to claims for securities and common law fraud based on
    Defendant Wright’s alleged misrepresentation that the $120
    valuation was prepared by Blue & Co., LLC. Defendants’
    motion for summary judgment on Count III is granted as to the
    claim that Defendant Wright owed and breached any duty to
    Plaintiff prior to Plaintiff’s membership in BioConvergence,
    LLC, including any representation prior to such membership that
    the units were valued at $120 per unit and that the valuation was
    prepared by Blue & Co., LLC. Defendants’ motion for summary
    judgment as to Count III is otherwise denied.
    IT IS FURTHER ORDERED the court finds there is no just
    reason for delay and hereby directs entry of judgment in favor of
    the Plaintiff, Julie Menefee, and against the Defendants, Alisa
    Wright and BioConvergence, LLC on Defendants’ Alisa Wright
    and BioConvergence, LLC Counterclaim. Judgment is entered
    in favor of Defendants, BioConvergence, LLC and Alisa Wright
    on Plaintiff’s claims in Count I and Count II for fraud based on
    the Defendants’ alleged misrepresentation of the value of the
    BioConvergence, LLC units. Judgment is entered in favor of the
    Defendant, Alisa Wright, and against the Plaintiff, Julie
    Menefee, on the claim included in Count III that Defendant
    Wright owed and breached any duty to Plaintiff prior to
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 18 of 54
    Plaintiff’s membership that the Class B units were valued at $120
    per unit and that the valuation was prepared by Blue & Co.,
    LLC.
    Appellants’ Appendix Volume 2 at 93-99.
    [14]   On October 12, 2016, Alisa filed a motion for summary judgment on Count III
    of Julie’s amended complaint. Alisa pointed to a transcript of a July 8, 2016
    hearing, a deposition of Julie dated August 25, 2016, and other evidence. On
    December 21, 2016, Julie filed a response in opposition to Alisa’s motion. On
    January 3, 2017, Alisa filed a brief in reply to Julie’s response.
    [15]   On January 12, 2017, the court entered an order which states:
    The court, having conducted a hearing on January 10, 2017 on
    Defendant Alisa Wright’s Motion for Summary Judgment on
    Count III of Plaintiff’s Amended Complaint, and having taken
    the motion under advisement, now finds the motion should be
    granted in part and denied in part.
    Count III of Plaintiff’s Amended Complaint states a claim for
    breach of fiduciary duty including willful mismanagement of
    BioConvergence, LLC. The claim is asserted against Defendant
    Wright as a member, director, and officer of the limited liability
    company. The court now finds that Article 4, section 4.1 of the
    applicable Operating Agreement of BioConvergence LLC, places
    responsibility for the management of BioConvergence LLC
    business with its Board of Directors. Section 4.5 grants specific
    powers to the Chief Executive Officer, including executing leases
    on behalf of the limited liability company. Consequently, while
    Defendant Wright owed a fiduciary duty to other members
    whether she was acting in her capacity as a member, officer, or
    director, Defendant Wright’s liability for alleged mismanagement
    of BioConvergence lies only in her capacity as director or officer.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 19 of 54
    Consequently, the court now grants summary judgment in favor
    of the Defendant, Alisa Wright on the portion of the breach of
    fiduciary duty claim that asserts willful mismanagement against
    her as a member and will proceed to address the claim as asserted
    against Mr. [sic] Wright as a director and officer.
    Plaintiff has identified fifteen bases for her claim of willful
    mismanagement. At the hearing, it was discussed that it would
    be beneficial to the efficient preparation for, and trial of, this case
    if the court addressed each basis for the claim.
    The court now grants summary judgment in favor of Defendant
    Alisa Wright and against the Plaintiff, Julie Menefee, on Count
    III of the Amended Complaint on each of the following bases for
    breach of fiduciary claim:
    • Manipulating BioConvergence LLC’s financials to make it
    appear that the company was profitable when it was not;
    • Failing to be present a [sic] BioConvergence LLC’s office’
    [sic][;]
    • Failing to make decisions regarding the direction of
    BioConvergence LLC[;]
    • Withholding information from members of
    BioConvergence LLC about BioConvergence LLC’s
    financial condition;
    • Not holding annual member meetings;
    • Firing key BioConvergence LLC staff members without
    cause;
    • Filling all of the positions on BioConvergence LLC’s
    Board of Directors with paid consultants;
    • Taking actions to alienate BioConvergence LLC’s major
    client;
    • Spending excessive BioConvergence LLC funds on
    attorney fees; and
    • Having Alisa Wright as the only Board member from
    2008-2013.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018      Page 20 of 54
    For each of these bases, even if the breaches were proven,
    Plaintiff has failed to come forward with any designated
    materials raising a genuine issue of material fact as to whether
    she suffered damages as a result of these alleged breaches. There
    has been no evidence indicating these actions caused Ms. Wright
    [sic] damages.
    The court also grants summary judgment in favor of Defendant
    Alisa Wright and against the Plaintiff, Julie Menefee, on
    Plaintiff’s claim for breach of fiduciary duty and willful
    mismanagement for allegedly spending excessive
    BioConvergence LLC funds on attorney fees. The claim for
    excessive attorney fees relates to attorney fees spent by Defendant
    Wright in defense of the very claim filed by Plaintiff and in
    defense of a related action filed by the former CFO of
    BioConvergence LLC. Plaintiff asserts Defendant Wright should
    have settled these cases. Both cases remain pending, and any
    claim for excessive attorney fees is premature as it is unknown at
    this time who will prevail in the actions. On the claim for breach
    of fiduciary duty for expending excessive attorney fees, proof of
    damages and excessive attorney fees is an element of a claim that
    must be proven before Plaintiff can prevail. Plaintiff has failed to
    designate any materials showing potential entitlement to attorney
    fees based on any conduct other than failing to settle the cases.
    Such damages cannot be proved while the cases remain pending,
    and summary judgment in favor of Defendant Wright is
    appropriate. The court has bifurcated the remaining claims for
    attorney fees on the Plaintiff’s fraud claims and Defendants’
    breach of contract claim, and those will be heard if appropriate
    following the jury trial.
    Summary judgment also is granted in favor of Defendant Alisa
    Wright and against Plaintiff Julie Menefee on Count III of the
    Amended Complaint on the basis that Defendant Wright
    misrepresented that BioConvergence LLC’s accounting firm,
    Blue & Co., performed the $120 valuation prior to Plaintiff’s
    purchase of BioConvergence LLC units in November 2008. As
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 21 of 54
    previously found by the court, Defendant Wright did not owe a
    fiduciary duty to Plaintiff Menefee until Ms. Menefee became a
    member of BioConvergence LLC. Consequently, any alleged
    misrepresentation prior to Ms. Menefee’s purchase of the units is
    not actionable as a breach of fiduciary duty. As to any such
    alleged misrepresentation made or continuing after Plaintiff
    became a member, the Plaintiff has failed to come forward with
    any indication of damages she may have incurred by such
    misrepresentation.
    Summary judgment also is granted in favor of Defendant Alisa
    Wright and against Plaintiff Julie Menefee on Count III of the
    Amended Complaint on the basis that Defendant Wright set the
    price of BioConvergence LLC units without a rational basis. In
    many ways, this is the heart of the matter between these parties.
    For a director or officer knowingly to set values on a company’s
    units without any rational basis could well form the basis for a
    claim of willful mismanagement and breach of fiduciary duty.
    However, in this case, as the court understand [sic] the Plaintiff’s
    claim, summary judgment is appropriate. There are three
    primary valuations at issue: the $120 valuation set when Ms.
    Menefee purchases her units; a subsequent $140 valuation; and
    the later valuation of Plaintiff’s units at $15.50. It is the court’s
    understanding that Plaintiff is not asserting the $15.50 price was
    set without a rational basis as that price was based on the
    analysis of Blue & Co. Rather, the court understands Plaintiff to
    challenge the values of $120 and $140 as being without rational
    basis. Again, because the $120 value was set prior to Defendant
    Wright owing Plaintiff a fiduciary duty, any lack of rational basis
    for that price cannot form the basis for a breach of fiduciary duty
    claim. With respect to the $140 price, Plaintiff has failed to come
    forward with any indication of how she may have been damaged
    by this valuation. If the court has misunderstood the Plaintiff’s
    claim, and her claim does include an assertion that the price of
    $15.50 was set without a rational basis, counsel are respectfully
    requested to notify the court and this portion of the summary
    judgment order may be reconsidered.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 22 of 54
    The court denies summary judgment on Count III of the
    Amended Complaint on the basis that Defendant Wright
    allegedly paid excessive rent to Great Oak Tree. First, the court
    finds summary judgment is not appropriate based on the claim
    being a derivative rather than direct action. The court agrees any
    harm from this action generally would constitute injury to
    BioConvergence LLC, not Plaintiff Menefee individually.
    However, at this summary judgment stage, Defendant Wright
    has failed to establish the inapplicability of the exception created
    in Barth v. Barth, 
    659 N.E.2d 559
    (Ind. 1995) allowing a member
    of a limited liability company to pursue a direct action for harm
    to the company under certain circumstances.
    The closer question for the court is whether summary judgment
    is appropriate on the excessive rent claim because Plaintiff
    cannot prove damages or breach. Plaintiff has designated
    materials that reflect varying amounts of rent were paid by
    BioConvergence LLC to Great Oak Tree while [Alisa] was the
    CEO, and at times only director, of BioConvergence LLC and
    while Great Oak Tree was owned by Defendant Wright, her
    parents, her sister and a trust. Between 2008 and 2014, annual
    rent paid to Great Oak Tree varied from a low of $425,000 to a
    high of $650,000. As noted by Plaintiff, when an owner, director
    or officer of a company places her own interests in company
    leases above the interests of the company, such action may
    constitute a breach of fiduciary duty. However, Defendant
    Wright came forward with deposition testimony from Plaintiff’s
    husband taken in July 17, 2015, that he had not done an
    assessment of BioConvergence LLC rent and the claim was
    speculative. Plaintiff, however, has designated materials showing
    what was paid in rent to Great Oak Tree. Neither Plaintiff nor
    Defendant Wright have designated evidence establishing what
    reasonable rent may have been. The court finds a genuine issue
    of material fact exists as to whether the rent was reasonable.
    As summary judgment was denied in part as to Count III,
    Defendant Wright’s request for attorney fees is denied.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 23 of 54
    
    Id. at 50-53.
    [16]   On January 23rd through the 26th of 2017, the court held a jury trial. The jury
    found that BioConvergence and Alisa did not commit securities fraud, did not
    commit fraud, and did not commit fraud that constituted criminal deception,
    that Alisa did not breach the fiduciary duties she owed to Julie, and that Julie
    breached the representation in section 2(b) of the Subscription Agreement that
    she had sufficient knowledge and experience in business and financial matters
    to evaluate the merits and risks of an investment in the company.
    [17]   On January 29, 2017, the court entered an order stating that the jury returned a
    verdict in favor of the Defendants on all remaining claims in Julie’s amended
    complaint and returned a verdict in favor of the Defendants and against Julie
    on the Defendants’ counterclaim. The court accepted the jury’s verdict and
    entered judgment in favor of the Defendants and against Julie on Julie’s
    amended complaint. Appellants’ Appendix Volume 3 at 34. The court entered
    judgment on the issue of liability in favor of the Defendants and against Julie on
    the Defendants’ counterclaim for breach of contract, specifically, breach of
    Section 2(b) of the Subscription Agreement. The order states: “The issues of
    damages, indemnity and attorney fees relative to the Counterclaim are
    bifurcated to be heard by the court, and a separate hearing date will be set.” 
    Id. [18] On
    February 28, 2017, Julie filed a motion to correct error. On March 27,
    2017, BioConvergence and Alisa filed a brief in opposition to Julie’s motion.
    That same day, the Defendants filed a Motion for Assessment of Damages on
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 24 of 54
    Counterclaim and for Entry of Judgment and a brief in support of the motion.
    BioConvergence and Alisa also filed a Consolidated Motion for Attorneys’ Fees
    Under Ind. Code § 34-52-1-1 and for Revision of Summary Judgment Order
    under Trial Rule 54 as to Attorneys’ Fees. They requested that the court enter
    an order awarding attorney fees and expenses in their favor in the amount of
    $732,018.39.
    [19]   On May 19, 2017, Julie filed a Consolidated Reply in Support of Motion to
    Correct Errors and for Judgment on the Evidence and Response to Motion for
    Assessment of Damages. On May 31, 2017, Defendants filed a Reply Brief to
    Plaintiff’s Consolidated Reply in Support of Motion to Correct Errors and for
    Judgment on the Evidence and Response to Motion for Assessment of
    Damages. That same day, Defendants also filed a Brief in Reply to Plaintiff’s
    Opposition to Defendants’ Consolidated Motion for Attorneys’ Fees under Ind.
    Code § 34-52-1-1 and for Revision of Summary Judgment under Trial Rule 54
    as to Attorneys’ Fees.
    [20]   On June 16, 2017, the court held a hearing on the motions. On July 14, 2017,
    the court entered an order which states:
    The court conducted a hearing on June 16, 2017 on
    Counterclaim Defendant Julie Menefee’s Motion to Correct
    Errors and for Judgment on the Evidence; on Defendants’
    Consolidated Motion for Attorneys’ Fees under I.C. 34-52-1-1
    and for Revision of Summary Judgment Order Under Trial Rule
    54 as to Attorneys’ Fees; and on Defendants/Counterclaimants’
    Motion for Assessment of Damages on Counterclaim and for
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 25 of 54
    Entry of Judgment. Having taken the motions under
    advisement, the court now finds as follows:
    Counterclaim Defendant Julie Menefee’s Motion to Correct
    Errors and for Judgment on the Evidence is denied.
    With respect to Defendants/Counterclaimants’ Motion for
    Assessment of Damages on Counterclaim and for Entry of
    Judgment, the court finds the Defendants are not entitled to an
    award of damages on the jury’s verdict in favor of defendants and
    against the plaintiff on defendants’ counterclaim. The only
    damages sought by defendants for breach of the subscription
    agreement are attorney fees and costs incurred in defending
    plaintiff’s complaint and in pursuing the counterclaim. Although
    the elements of damage are limited, the amount of damages
    sought is substantial, totaling $732,018.39. Of this figure, over
    $686,000 is sought for attorney fees, and the balance for other
    litigation expenses[.]
    Under the “American Rule” each party generally is responsible
    for her own attorney fees, and attorney fees are not recoverable
    as damages in a breach of contract action absent a statute, rule or
    agreement to the contrary. Flaherty & Collins v. BBR-Vision I, L.P.,
    
    990 N.E.2d 958
    , 966 (Ind. Ct. App. 2013), citing, L.H. Controls,
    Inc. v. Custom Conveyor, Inc. 
    974 N.E.2d 1031
    , 1046 (Ind. Ct. App.
    2012[])[, trans. denied.] Under the American Rule, attorney fees
    cannot be characterized as consequential damages in a breach of
    contract action. [Dale] Bland Trucking, Inc. v. Kiger, 
    598 N.E.2d 1103
    , 1105 (Ind. Ct. App. Sept. 15, 1992), citing, Indiana Insurance
    Co. v. Plummer Power Mower & Tool Rental, Inc., 
    590 N.E.2d 1085
    ,
    1093 (Ind. Ct. App. 1992). Indiana courts have recognized that
    when a breach of contract causes the other party to “engage in
    litigation with a third party and such action would not have been
    necessary but for the breach, attorney fees and litigation expenses
    may be awarded as breach of contract damages.” 
    Flaherty, supra, at 966
    . However, this exception is not available in a first party
    action. 
    Id. Court of
    Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 26 of 54
    Counterclaimants rely on the indemnity provision in the
    subscription agreement to provide the basis for recovery of fees.
    That provision provides for the recovery of costs, but does not
    specify attorney fees. Indemnity provisions are strictly construed.
    Fresh Cut, Inc. v. Fazli, 
    650 N.E.2d 1126
    , 1132 (Ind. 1995).
    Although the counterclaimants cite cases in which attorney fees
    were recoverable without a specific provision for recovery of
    attorney fees, those cases initially involved third party claims for
    which the indemnitor failed to indemnify the indemnitee. See,
    Fort Wayne Lodge, L.L.C. v. EBH Corp., 
    805 N.E.2d 876
    (Ind. Ct.
    App. Apr. 6, 2004); Bethlehem Steel Corp. v. Sercon Corp., 
    654 N.E.2d 1163
    (Ind. Ct. App. 1995)[, reh’g denied, trans. denied].
    These cases are consistent with the rule in 
    Flaherty, supra
    . The
    action here, however, was a first party claim.
    The indemnity provision in the subscription agreement does not
    include language clearly stating the provision applies to first party
    claims. “The general legal understanding of indemnity clauses is
    that they cover ‘“the risk of harm sustained by third persons that
    might be caused by either the indemnitor or the indemnitee. It
    shifts the financial burden for the ultimate payment of damages
    from the indemnitee to the indemnitor.’” L.H. at 1047 (quoting
    Indianapolis City Market Corp. v. MAV, Inc., 
    915 N.E.2d 1013
    , 1023
    (Ind. Ct. App. 2009)).” 
    Flaherty, supra
    , at 967. “There is no
    absolute prohibition against one party agreeing to indemnify the
    other party for first-party claims arising between those parties. . .
    . Where the plain language of the provision requires first-party
    indemnification, then such indemnification is permitted. Sequa
    Coatings Corp. v. N. Ind. Commuter Transp. Dist., 
    796 N.E.2d 1216
    ,
    1229 (Ind. Ct. App. 2003) (noting that [‘]the plain language[’]
    expressly stated, among other things, [‘“]any and all Causes of
    Action, as defined above, asserted by any parties and non-parties
    to this Agreement[”’]), trans. denied.” 
    Id. (other internal
    citations
    omitted.)
    The court recognizes that the applicability of an indemnity clause
    to first party claims can be found, even without specific language
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 27 of 54
    encompassing first party claims, when the context of the
    agreement makes it apparent such was the parties’ intent. See,
    Fackler v. Powell, 
    891 N.E.2d 1091
    (Ind. Ct. App. 2008)
    (indemnity and hold harmless provision specifically providing for
    recovery of attorney fees for breach of terms of dissolution
    decree). However, the court does not find the language of the
    subscription agreement to be such a clear case of the parties’
    intent to cover first party claims. Although counterclaimants
    may not have drafted the subscription agreement, they presented
    it to the plaintiff and counterclaimants clearly were the parties
    requiring execution of the agreement. As such, and construing
    the agreement strictly, the court finds any ambiguity in the
    agreement regarding whether it would apply to first party claims
    must be construed against the counterclaimants. See, 
    L.H., supra
    .
    The court finds the subscription agreement, which document
    contained neither a specific provision for recovery of attorney
    fees nor clear language that it applied to first party claims, does
    not permit counterclaimants to recover their attorney fees and
    expenses incurred in defending the plaintiff’s action or incurred
    in pursuing their counterclaim. Moreover, the court finds that
    defendants/counterclaimants have failed to prove that the
    attorney fees they incurred in defending the action and pursuing
    their counterclaim were caused by plaintiff’s breach of section
    2(b) of the subscription agreement.
    The court denies the defendants’ Motion for Revision of
    Summary Judgment Order Under Trial Rule 54 as to Attorney
    Fees, which motion was consolidated with defendants’ Motion
    for Attorneys’ Fees Under I.C. 34-52-1-1. The court further
    denies defendants’ motion for Attorneys’ Fees Under I.C. 34-52-
    1-1 with respect to all claims except plaintiff’s claim for treble
    damages and attorney fees under I.C. 34-24-3-1.
    Plaintiff argues the court’s denial of defendants’ motion for
    summary judgment on Count II precludes a finding that pursuit
    of the claim under the Crime Victims’ Act was frivolous or
    groundless. However, neither the motion for summary judgment
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 28 of 54
    on Count II nor the court’s ruling on the motion addressed the
    specific claim for damages under I.C. 34-24-3 nor any defense
    that the misrepresentation had to be in writing. The court finds
    its order denying defendants’ request for summary judgment on
    Count II does not preclude a finding that pursuit of the claim for
    damages under the Crime Victims’ Act was groundless.
    In her amended complaint, plaintiff asserted a claim for securities
    fraud, a claim for common law fraud, and a claim for breach of
    fiduciary duty. In Count II, her claim for common law fraud,
    plaintiff claimed she purchased her units in BioConvergence
    based on defendant Wright’s intentional, false statement that the
    units were valued at $120 a unit by Blue and Company; that
    when defendant Wright made the representation, she knew the
    valuation was not prepared by Blue and Company and knew the
    units were not worth $120 a unit; and that plaintiff relied on the
    false statements when she purchased her units. In her prayer for
    damages for fraud, plaintiff sought compensatory damages,
    attorney fees, punitive damages “along with treble damages and
    attorneys’ fees pursuant [to] Indiana Code Sec. 34-24-3 et seq.”
    Indiana Code Sec. 34-24-3-1 et seq., commonly referred to as the
    Crime Victims’ Relief Act, permits recovery of treble damages,
    costs and attorney fees when liability is established as a result of a
    violation of I.C. 35-43; I.C. 35-42-3-3; I.C. 35-42-3-4; or I.C. 35-
    45-9.4 [sic]. The only provision argued to be applicable in this
    case was criminal deception a violation of I.C. 35-43-5-3(a)(2).
    Criminal deception under I.C. 35-43-5-3(a)(2) requires proof that
    a person knowingly or intentionally made a false or misleading
    written statement with intent to obtain property, employment, or
    an educational opportunity. Plaintiff consistently asserted that
    the alleged misrepresentation she relied on prior to purchasing
    her units was defendant Wright’s oral representation that Blue &
    Co. prepared the $120 per unit valuation. Plaintiff never asserted
    she relied on a written statement of any kind. At trial, plaintiff
    did present evidence of written e-mails sent by [Alisa] to Greg
    Menefee. Plaintiff’s Exhibit 60 was an e-mail sent by [Alisa] to
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 29 of 54
    Greg Menefee on November 21, 2007 attaching a draft valuation
    of BioConvergence. The e-mail stated “Blue & Co is doing a
    review on it. Based on the discussion I had with Blue, the
    valuation is in the ballpark.” Plaintiff’s Exhibit 68 was an e-mail
    sent by Ms. Wright to Greg Menefee’s e-mail address on
    December 19, 2007. The e-mail was addressed to both Greg
    Menefee and Julie Menefee. The e-mail welcomed Greg and
    Julie Menefee to the Bio[C]onvergence group, noted the plan was
    for the Menefees to become members in January 2008 and,
    among other items, stated, “Current valuation of the company
    confirmed by Blue & Co, BioC’s accounting firm, in December
    2007 at [$XXX][2]:, setting the new value per unit at $131.05.” At
    trial, the representative from Blue & Co. testified the firm worked
    with Ms. Wright in reviewing certain figures and procedures
    related to the valuation, but did not perform a “review” or
    “valuation,” or “confirm” defendant’s valuation of
    BioConvergence LLC as those terms are used in the accounting
    profession.
    Reliance is not an element of criminal deception, but it is for
    common law fraud. Neither of these e-mails was ever presented
    to or shared with Julie Menefee by Greg Menefee or otherwise.
    Neither of the e-mails state that Blue & Co valued the units at
    $120.00. Julie Menefee was not aware of these e-mails when she
    purchased the units in BioConvergence, LLC, and Julie Menefee
    did not directly rely on the written statements. However, Greg
    Menefee had seen the e-mails, one of which was addressed to
    Julie Menefee as well as Greg Menefee; the e-mails were sent
    within months of Plaintiff’s purchase of the units and related to
    the Plaintiff’s and Greg Menefee’s decision to become owners in
    BioConvergence LLC; Greg Menefee did tell Julie Menefee that
    he thought the purchase of the units at $120.00 would be a good
    investment; and Greg Menefee testified that his opinion was
    2
    Bracketed text appears in trial court’s order.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 30 of 54
    based in part on his trust of Alisa Wright, but also on his trust of
    Blue & Co. Reasonable argument could be made that Julie
    Menefee relied in part on Greg Menefee’s opinion of the
    investment.
    The question for the court is not whether these emails do in fact
    constitute the “written statement” required for criminal
    deception, but whether an argument that they do is frivolous,
    unreasonable or groundless. It is a very close question for the
    court, but the court concludes it cannot say the claim was
    frivolous, unreasonable or groundless. Defendants’ claim for
    attorney fees on this claim is denied as well.
    Appellants’ Appendix Volume 2 at 55-59.
    Discussion
    [21]   The issue is whether the trial court clearly erred or abused its discretion in
    denying the request of BioConvergence and Alisa for attorney fees. Generally,
    Indiana has consistently followed the American Rule in which both parties
    generally pay their own fees. Loparex, LLC v. MPI Release Techs., LLC, 
    964 N.E.2d 806
    , 815-816 (Ind. 2012). In the absence of statutory authority or an
    agreement between the parties to the contrary – or an equitable exception – a
    prevailing party has no right to recover attorney fees from the opposition. 3 
    Id. at 816.
    This case requires us to examine: (A) statutory authority; and (B) the
    Subscription Agreement.
    3
    There are three well-established common-law exceptions to the American Rule: the “obdurate behavior”
    exception, the “common fund” exception, and the “private attorney general” exception. Indiana embraces
    the first two of these and not the third. Loparex, 
    LLC, 964 N.E.2d at 816
    n.5.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                    Page 31 of 54
    A.         Statutory Authority
    [22]   The Indiana General Assembly and the Indiana Supreme Court “have given the
    courts of this state tools to deal with abusive litigation practices.” Zavodnik v.
    Harper, 
    17 N.E.3d 259
    , 264 (Ind. 2014). Ind. Code § 34-52-1-1 is titled
    “General recovery rule” and provides in part:
    (b) 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:
    (1) brought the action or defense on a claim or defense that
    is frivolous, unreasonable, or groundless;
    (2) continued to litigate the action or defense after the
    party’s claim or defense clearly became frivolous,
    unreasonable, or groundless; or
    (3) litigated the action in bad faith.
    [23]   In discussing a prior version of the statute, the Indiana Supreme Court stated
    that the statute “strikes a balance between respect for an attorney’s duty of
    zealous advocacy and ‘the important policy of discouraging unnecessary and
    unwarranted litigation.’”4 Mitchell v. Mitchell, 
    695 N.E.2d 920
    , 924 (Ind. 1998)
    4
    The Court was examining Ind. Code § 34-1-32-1, which similarly provided:
    (b)     In any civil action, the court may award attorney’s fees as part of the cost to the
    prevailing party, if it finds that either party:
    (1)      brought the action or defense on a claim or defense that is frivolous,
    unreasonable, or groundless;
    (2)      continued to litigate the action or defense after the party’s claim or
    defense clearly became frivolous, unreasonable, or groundless; or
    (3)      litigated the action in bad faith.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                              Page 32 of 54
    (quoting Kahn v. Cundiff, 
    533 N.E.2d 164
    , 170 (Ind. Ct. App. 1989)).
    “Subsections (b)(1) and (b)(2) of the statute focus on the legal and factual basis
    of the claim or defense and the arguments supporting the claim or defense.” 
    Id. “In contrast,
    subsection (b)(3) – ‘litigated the action in bad faith’ – by its terms
    requires scrutiny of the motive or purpose of the non-prevailing party.” 
    Id. The Indiana
    Supreme Court has held:
    More precisely,
    bad faith 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.
    
    Id. (quoting Watson
    v. Thibodeau, 
    559 N.E.2d 1205
    , 1211 (Ind. Ct. App. 1990)
    (quoting Young v. Williamson, 
    497 N.E.2d 612
    , 617 (Ind. Ct. App. 1986), reh’g
    denied, trans. denied)). The Court also explained:
    This Court has observed in related contexts that the legal process
    “must invite, not inhibit, the presentation of new and creative
    argument” to enable the law to grow and evolve. Orr v. Turco
    Mfg. Co., 
    512 N.E.2d 151
    , 153 (Ind. 1987) (setting forth standard
    for punitive sanctions for frivolous appellate claims). To be sure,
    application of the statutory authorization for recovery of
    attorney’s fees . . . must leave breathing room for zealous
    advocacy and access to the courts to vindicate rights. 
    Kahn, 533 N.E.2d at 170
    . Courts must be sensitive to these considerations
    and view claims of “frivolous, unreasonable, or groundless”
    claims or defenses with suspicion.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 33 of 54
    
    Id. at 925.
    [24]   Ind. Code § 34-52-1-1(b) “places an obligation on litigants to investigate the
    legal and factual basis of the claim when filing and to continuously evaluate the
    merits of claims and defenses asserted throughout litigation.” Landmark Legacy,
    LP v. Runkle, 
    81 N.E.3d 1107
    , 1116-1117 (Ind. Ct. App. 2017) (quoting Gen.
    Collections, Inc. v. Decker, 
    545 N.E.2d 18
    , 20 (Ind. Ct. App. 1989)). “A claim is
    ‘frivolous’ if it is made primarily to harass or maliciously injure another; if
    counsel is unable to make a good faith and rational argument on the merits of
    the action; or if counsel is unable to support the action by a good faith and
    rational argument for extension, modification, or reversal of existing law.”
    Kitchell v. Franklin, 
    26 N.E.3d 1050
    , 1057 (Ind. Ct. App. 2015) (citing Wagler v.
    W. Boggs Sewer Dist., Inc., 
    980 N.E.2d 363
    , 383 (Ind. Ct. App. 2012), reh’g denied,
    trans. denied, cert. denied, 
    134 S. Ct. 952
    (2014)), trans. denied. “A claim is
    ‘unreasonable’ if, based on the totality of the circumstances, including the law
    and facts known at the time, no reasonable attorney would consider the claim
    justified or worthy of litigation.” 
    Id. “A claim
    is groundless if no facts exist
    which support the legal claim relied on and presented by the losing party.”
    Purcell v. Old Nat. Bank, 
    972 N.E.2d 835
    , 843 (Ind. 2012). “However, the law is
    settled that a claim is neither groundless nor frivolous merely because a party
    loses on the merits.” 
    Kitchell, 26 N.E.3d at 1057
    . “Bad faith is demonstrated
    where the party presenting the claim is affirmatively operating with furtive
    design or ill will.” 
    Id. Court of
    Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 34 of 54
    [25]   “The trial court’s decision to award attorney’s fees under § 34-52-1-1 is subject
    to a multi-level review: the trial court’s findings of facts are reviewed under the
    clearly erroneous standard and legal conclusions regarding whether the
    litigant’s claim was frivolous, unreasonable, or groundless are reviewed de
    novo.” 
    Purcell, 972 N.E.2d at 843
    (citing R.L. Turner Corp. v. Town of
    Brownsburg, 
    963 N.E.2d 453
    , 457 (Ind. 2012)). “[T]he trial court’s decision to
    award attorney’s fees and any amount thereof is reviewed for an abuse of
    discretion.” 
    Id. “A trial
    court abuses its discretion if its decision clearly
    contravenes the logic and effect of the facts and circumstances or if the trial
    court has misinterpreted the law.” 
    Id. [26] BioConvergence
    and Alisa appear to argue that: (1) Julie’s claims were
    frivolous because she abandoned most claims on summary judgment; (2) Julie’s
    claim of excessive payments by BioConvergence was not recoverable because
    such claim belonged to BioConvergence; (3) Julie’s claim related to criminal
    deception was frivolous because there was no written statement; and (4) Julie’s
    fraud and securities fraud claims were frivolous.
    1.       Julie’s Allegations
    [27]   BioConvergence and Alisa assert that Julie abandoned fourteen claims under
    Count III after litigating them for three years and after Alisa designated
    evidence on summary judgment proving that the factual and legal bases were
    lacking.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 35 of 54
    [28]   Julie argues that BioConvergence and Alisa contend that she asserted fifteen
    claims for breach of fiduciary duty and that the trial court entered summary
    judgment against her on fourteen out of those fifteen claims, but that their
    contention is false. She asserts that she alleged one claim for breach of
    fiduciary duty against Alisa in Count III of the amended complaint. She claims
    that BioConvergence and Alisa attempt to characterize that one claim as fifteen
    separate claims by citing her answer to an interrogatory and her deposition
    testimony about the interrogatory answer. She asserts that responses to
    interrogatories are not claims and that, “[w]ere the Court to decide that all
    statements in answers to interrogatories that a party did not pursue at trial were
    ‘frivolous claims,’ parties would be discouraged from ‘fully’ responding to
    interrogatories.” Appellee’s Brief at 15. She asserts that such a result would
    lead to violations of Ind. Trial Rules 265 and 336 and frustrate the discovery
    process. She contends that, when she was asked to list the grounds upon which
    she claimed a breach of fiduciary duty, she responded with all facts that she
    believed could possibly support her claim. With respect to whether she
    abandoned that claim, Julie argues that she filed an amended complaint
    sufficient to place BioConvergence and Alisa on notice of her claims and later
    determined that the best course was to pursue a claim against Alisa in her
    5
    Ind. Trial Rule 26 governs the scope of discovery and provides in part that “[p]arties may obtain discovery
    regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action,
    whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other
    party . . . .” (Emphasis added).
    6
    Ind. Trial Rule 33 provides in part: “Each interrogatory shall be answered separately and fully . . . .”
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                               Page 36 of 54
    capacity as an officer and accordingly did not oppose Alisa’s request to enter
    summary judgment with respect to Alisa’s role as a member.
    [29]   To the extent Julie abandoned assertions made in her discovery response, we
    cannot say that such abandonment indicates that her claims were frivolous or
    that she continued to litigate the action after her claim clearly became frivolous,
    unreasonable, or groundless. We observe that, with respect to some of the
    examples addressed in the brief of BioConvergence and Alisa, they do not cite
    to the record for the argument that Julie abandoned claims. We also observe
    that BioConvergence and Alisa do not respond to Julie’s argument that limiting
    her discovery responses would have violated Ind. Trial Rules 26 and 33.
    [30]   With respect to their assertion that the trial court’s April 6, 2016 order found
    that Alisa owed no fiduciary duty to Julie prior to her membership,
    BioConvergence and Alisa argue, without citation to the record, that Julie
    “continued to assert such claim in Count III, thereby, forcing Alisa to continue
    to defend a claim the trial court had already rejected.” Appellants’ Brief at 24.
    A review of the record reveals that Julie’s December 21, 2016 response in
    opposition to Alisa’s motion for summary judgment on Count III stated in part
    that “Alisa Wright made misrepresentations regarding who valued
    BioConvergence’s units after Julie became a member of BioConvergence.”
    Appellants’ Appendix Volume 2 at 222 (emphasis added).
    [31]   The record suggests at least some evidence with respect to other allegations.
    With respect to manipulating financials, BioConvergence and Alisa cite to
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 37 of 54
    Julie’s August 25, 2016 deposition and assert that she admitted she had no
    knowledge that any BioConvergence financial document was manipulated and
    that no person advised her that Alisa manipulated any BioConvergence
    financial document. The portion of Julie’s deposition cited by BioConvergence
    and Alisa reveals an exchange in which Julie mentions a 2011 tape on which
    Alisa and others discussed “maybe altering the rents or doing something to
    make [BioConvergence] more profitable so they could get a line of credit.” 
    Id. at 137.
    She also mentioned that the “rents were certainly fluctuating,” that the
    “fluctuation of the rents would make [BioConvergence] appear more
    profitable,” and that “[w]hen the rents fluctuated, that’s a manipulation of the
    financials . . . .” 
    Id. [32] As
    for Alisa’s alleged failure to be at BioConvergence’s offices, BioConvergence
    and Alisa argue that Julie admitted she had no personal knowledge of Alisa’s
    alleged failure to be present, claimed no specific damage relating to Alisa’s
    failure to be at BioConvergence’s offices, designated no evidence or argument,
    and abandoned this claim. The portion of Julie’s deposition cited by
    BioConvergence and Alisa reveals that, when asked about Alisa’s failure to be
    present, Julie mentioned “conversations with former employees saying she
    wasn’t there a lot of the time.” 
    Id. at 140.
    She testified that, while she did not
    have personal knowledge that Alisa failed to be present at the offices, she would
    rely on the testimony of “Kathy Eddy. Could be Lance. And I know Janet
    and Kelly. Kelly Zaleski, Janet Carminati.” 
    Id. Court of
    Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 38 of 54
    [33]   Based upon our review of the record, we cannot say that BioConvergence and
    Alisa have demonstrated that there are no facts that support Julie’s allegations
    or that reversal is warranted. See 
    Purcell, 972 N.E.2d at 843
    (“Although the
    facts presented at trial were insufficient to survive judgment on the evidence, it
    remains true that some facts were presented in Purcell’s case-in-chief. As
    discussed above, it is likely that Purcell satisfied the quantitative aspect of the
    sufficiency analysis by presenting facts that potentially lend support to his
    conclusion. Thus, it cannot be said that ‘no facts’ existed in support of his legal
    claim at the time Purcell went to trial. Based on this conclusion and on the
    strong deference afforded to the trial court in these matters, we hold that the
    trial court did not abuse its discretion in denying Old National’s request for
    costs and attorney’s fees.”).
    2.       Claim of Excessive Payments as a Derivative Claim
    [34]   BioConvergence and Alisa argue that Julie’s claimed damages of excessive
    payments were never recoverable because the claim belonged to
    BioConvergence as a derivative suit. They point to the trial court’s findings in
    its January 12, 2016 order that summary judgment was not appropriate based
    on the claim being a derivative rather than a direct action because “at this
    summary judgment stage, [Alisa] has failed to establish the inapplicability of the
    exception created in Barth v. Barth, 
    659 N.E.2d 559
    (Ind. 1995) allowing a
    member of a limited liability company to pursue a direct action for harm to the
    company under certain circumstances.” Appellants’ Appendix Volume 2 at 53.
    BioConvergence and Alisa argue that this finding is clearly erroneous because
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 39 of 54
    “Alisa designated evidence of [Julie’s] repeated admission that she did not
    assert a derivative claim but asserted only an individual claim for damages.”
    Appellants’ Brief at 33 (citing Appellants’ Appendix Volume 2 at 68, 73, 240).7
    They cite Purcell v. Southern Hills Investments, LLC, 
    847 N.E.2d 991
    (Ind. Ct.
    App. 2006), for the idea that a court in such a case does not consider the Barth
    exception.
    [35]   Julie alleges that owners of closely-held companies are not always required to
    bring claims of harm to the company as derivative actions. She argues that it
    would have been futile to require her to make a demand on BioConvergence or
    to attempt to convince BioConvergence to assert claims against Alisa because
    Alisa was the sole director of BioConvergence at the time of the events alleged
    in the lawsuit and when she filed the lawsuit.
    [36]   In Barth, the Indiana Supreme Court stated:
    While we affirm the general rule requiring a shareholder to bring
    a derivative rather than direct action when seeking redress for
    injury to the corporation, we nevertheless observe two reasons
    why this rule will not always apply in the case of closely-held
    corporations. First, shareholders in a close corporation stand in a
    fiduciary relationship to each other, and as such, must deal fairly,
    honestly, and openly with the corporation and with their fellow
    7
    To the extent BioConvergence and Alisa assert Julie admitted that she did not assert a derivative claim, we
    observe that Julie alleged in her August 2013 complaint that Alisa, as a majority shareholder, owed fiduciary
    duties to her, a minority shareholder, and that she was damaged by Alisa’s breach of her fiduciary duties.
    Julie’s amended complaint again alleged that she was damaged by Alisa’s breach of her fiduciary duties. In
    her response in opposition to Alisa’s motion for summary judgment on Count III of her amended complaint,
    Julie stated that she “properly asserted her claims in a direct action.” Appellants’ Appendix Volume 2 at 240.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018                         Page 40 of 54
    shareholders. W & W Equipment Co.,[ Inc. v. Mink,] 568 N.E.2d
    [564, 570 (Ind. Ct. App. 1991), reh’g denied, trans. denied];
    Krukemeier v. Krukemeier Machine and Tool Co., Inc. (1990), Ind.
    App., 
    551 N.E.2d 885
    ; Garbe v. Excel Mold, Inc. (1979), Ind. App.,
    
    397 N.E.2d 296
    . Second, shareholder litigation in the closely-
    held corporation context will often not implicate the policies that
    mandate requiring derivative litigation when more widely-held
    corporations are involved. W & W Equipment Co., Inc. v. Mink is a
    leading case in this regard. There our Court of Appeals was
    faced with a lawsuit filed by one of two 50% shareholders of a
    corporation after the other shareholder joined with
    nonshareholder directors to fire the plaintiff shareholder and
    arrange for the payment of certain corporate assets to the other
    shareholder. The court concluded that no useful purpose would
    be served by forcing the plaintiff to proceed derivatively where
    the policies favoring derivative actions were not implicated—
    direct corporate recovery was not necessary to protect absent
    shareholders or creditors as none existed. 
    Id., 568 N.E.2d
    at 571.
    Because shareholders of closely-held corporations have very
    direct obligations to one another and because shareholder
    litigation in the closely-held corporation context will often not
    implicate the principles which gave rise to the rule requiring
    derivative litigation, courts in many cases are permitting direct
    suits by shareholders of closely-held corporations where the
    complaint is one that in a public corporation would have to be
    brought as a derivative action. See F. Hodge O’Neal & Robert B.
    Thompson, O’Neal’s Close Corporations § 8.16 n. 32 (3d ed. & 1995
    Cum. Supp.) (collecting cases); American Law Institute,
    Principles of Corporate Governance: Analysis and Recommendations §
    7.01, reporter’s n. 4 (1994) (collecting cases). However, it is
    important to keep in mind that the principles which gave rise to
    the rule requiring derivative actions will sometimes be present
    even in litigation involving closely-held corporations. For
    example, because a corporate recovery in a derivative action will
    benefit creditors while a direct recovery by a shareholder will not,
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 41 of 54
    the protection of creditors principle could well be implicated in a
    shareholder suit against a closely-held corporation with debt.
    *****
    In its recently-completed corporate governance project, the
    American Law Institute proposed the following rule for
    determining when a shareholder of a closely-held corporation
    may proceed by direct or derivative action:
    In the case of a closely held corporation, the court in its
    discretion may treat an action raising derivative claims as
    a direct action, exempt it from those restrictions and
    defenses applicable only to derivative actions, and order an
    individual recovery, if it finds that to do so will not (i)
    unfairly expose the corporation or the defendants to a
    multiplicity of actions, (ii) materially prejudice the
    interests of creditors of the corporation, or (iii) interfere
    with a fair distribution of the recovery among all interested
    persons.
    A.L.I., Principles of Corporate Governance § 7.01(d). We have
    studied this rule and find that it is consistent with the approach
    taken by our Court of Appeals and by most other jurisdictions in
    similar cases and that it represents a fair and workable approach
    for balancing the relative interests in closely-held corporation
    shareholder litigation.
    In determining that a trial court has discretion to decide whether
    a plaintiff must proceed by direct or by derivative action, we
    make the following observations, drawn largely from the
    Comment to § 7.01(d). First, permitting such litigation to
    proceed as a direct action will exempt the plaintiff from the
    requirements of Ind. Code § 23-1-32-1 et seq., including the
    provisions that permit a special committee of the board of
    directors to recommend dismissal of the lawsuit. Ind. Code § 23-
    1-32-4. As such, the court in making its decision should consider
    whether the corporation has a disinterested board that should be
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 42 of 54
    permitted to consider the lawsuit’s impact on the corporation.
    A.L.I., Corporate Governance Project § 7.01 comment e. Second, in
    some situations it may actually be to the benefit of the
    corporation to permit the plaintiff to proceed by direct action.
    This will permit the defendant to file a counterclaim against the
    plaintiff, whereas counterclaims are generally prohibited in
    derivative actions. Also, in a direct action each side will
    normally be responsible for its own legal expenses; the plaintiff,
    even if successful, cannot ordinarily look to the corporation for
    attorney’s fees. 
    Id. 659 N.E.2d
    at 561-563 (footnotes omitted).
    [37]   In Purcell, which is cited by BioConvergence and Alisa, the Court discussed
    Barth and commented that the Indiana Supreme Court “acknowledged that the
    distinction between direct and derivative claims has been complicated in recent
    years by recognition in many jurisdictions, including Indiana, of direct actions
    by shareholders in closely-held corporations for derivative claims.” 
    Purcell, 847 N.E.2d at 1001
    (footnote omitted). In part, the court held that “insofar as [the
    plaintiff] relies on the claim that [the defendant] violated his fiduciary duties to
    [the plaintiff] as a Member of [a limited liability company], this is properly
    asserted in a direct action because it is based upon rights and duties owed to
    [the plaintiff], not [the limited liability company].” 
    Id. The Court
    also stated
    that “[b]ecause [the plaintiff was] asserting a direct claim addressing a harm in
    its own name and not a derivative claim of corporate harm in the name of [a
    limited liability company] under the guise of a direct claim, we do not need to
    investigate whether the Barth exception is applicable.” 
    Id. Court of
    Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 43 of 54
    [38]   Based upon the record, including that Alisa has been the majority member of
    BioConvergence, we cannot conclude that the trial court abused its discretion
    by declining to find that Julie’s claim regarding excessive payments was
    frivolous based on the idea that she may have been required to file a derivative
    claim and award attorney fees on that basis.
    3.       Criminal Deception
    [39]   BioConvergence and Alisa argue that Julie sought damages under the Crime
    Victims Relief Act (“CVRA”) for criminal deception and assert that criminal
    deception requires a written statement and yet the trial court found no written
    statement that Julie relied upon, no written statement of which Julie was made
    aware, and no written statement that any person communicated to her. They
    assert that the Menefees each admitted that the only alleged representation
    relied upon was oral. BioConvergence and Alisa assert that this Court should
    reject the trial court’s reasoning that a plaintiff can reasonably assert a treble
    damages claim for criminal deception based on a written statement known only
    to a third party and which is not communicated to the plaintiff.
    [40]   Julie asserts that she presented evidence that Alisa engaged in criminal
    deception. She argues that even if she did not rely directly upon the emails
    Alisa sent to Greg, she could still maintain a claim for damages based on those
    emails. In their reply brief, BioConvergence and Alisa argue that Julie confuses
    reliance for a criminal conviction with causation for a civil CVRA claim when
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 44 of 54
    she argues that her civil CVRA claim cannot be frivolous because there is no
    proof of reliance required for a criminal deception conviction.
    [41]   Ind. Code § 34-24-3-1 is referred to as the CVRA and is titled “Pecuniary loss as
    result of property offenses” and provides in part:
    If a person has an unpaid claim on a liability that is covered by
    IC 24-4.6-5 or suffers a pecuniary loss as a result of a violation of
    IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9, the person
    may bring a civil action against the person who caused the loss
    for the following:
    (1) An amount not to exceed three (3) times:
    (A) the actual damages of the person suffering the
    loss, in the case of a liability that is not covered by
    IC 24-4.6-5; or
    (B) the total pump price of the motor fuel received,
    in the case of a liability that is covered by IC 24-4.6-
    5.
    (2) The costs of the action.
    (3) A reasonable attorney’s fee.
    [42]   Ind. Code § 35-43-5-3 governs criminal deception and provides in part that “[a]
    person who . . . knowingly or intentionally makes a false or misleading written
    statement with intent to obtain property, employment, or an educational
    opportunity . . . commits deception . . . .” The record reveals that Alisa sent
    Greg, Julie’s husband, an email message on November 21, 2007, referencing a
    “draft valuation” and stating that “[b]ased on the discussion [Alisa] had with
    Blue, the valuation is in the ballpark.” Plaintiff’s Exhibit 60. Alisa sent another
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018             Page 45 of 54
    email message to Greg, which was addressed to “Greg and Julie” and provided
    a valuation for the company “confirmed” by Blue & Co. Plaintiff’s Exhibit 68.
    [43]   The trial court’s order states:
    The question for the court is not whether these emails do in fact
    constitute the “written statement” required for criminal
    deception, but whether an argument that they do is frivolous,
    unreasonable or groundless. It is a very close question for the
    court, but the court concludes it cannot say the claim was
    frivolous, unreasonable or groundless.
    Appellants’ Appendix Volume 2 at 59. We cannot say that the trial court erred
    in concluding that Julie’s claim was not frivolous.
    4.       Fraud Claims
    [44]   BioConvergence and Alisa argue that Julie’s fraud and securities fraud claims
    were based on the same alleged oral representation by Alisa that
    BioConvergence’s accounting firm “prepared” the valuation. Appellants’ Brief
    at 39. They assert that Julie knew when she filed her complaint that the alleged
    oral representation that Blue & Company prepared the valuation was a false
    allegation. Julie responds that she presented evidence that Alisa committed
    securities fraud and fraud.
    [45]   Julie’s amended complaint cites Ind. Code § 23-19-5-1 under Count I, securities
    fraud. That statute provides:
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 46 of 54
    It is unlawful for a person, in connection with the offer, sale, or
    purchase of a security, directly or indirectly:
    (1) to employ a device, scheme, or artifice to defraud;
    (2) to make an untrue statement of a material fact or to
    omit to state a material fact necessary in order to make the
    statement made, in the light of the circumstances under
    which they were made, not misleading; or
    (3) to engage in an act, practice, or course of business that
    operates or would operate as a fraud or deceit upon
    another person.
    Ind. Code § 23-19-5-1.
    [46]   The record reveals that Alisa sent Greg an email message on November 21,
    2007, which stated in part: “As you and Lance are meeting later this morning,
    you’ll want to take a look at this when you talk. This is a draft valuation and
    Blue & Co is doing a review on it. Based on the discussion I had with Blue, the
    valuation is in the ballpark.” Plaintiff’s Exhibit 60. Alisa’s December 19, 2007
    email addressed to “Greg and Julie” stated in part: “Current valuation of the
    company confirmed by Blue & Co, BioC’s accounting firm, in December 2007
    at $9,267,841 – setting the new value per unit at $131.05.” Plaintiff’s Exhibit
    68.
    [47]   The record further reveals a deposition of Brooks, which states in part that he
    saw the November 21, 2007 email and that he did not believe that a review had
    been done. Eddy testified that it had become fairly apparent that Blue &
    Company had not done a certain valuation, Alisa asked her to look at the
    valuation as the CFO of BioConvergence in October 2011, she found “there
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018       Page 47 of 54
    were a lot of problems,” she went through the records to try to figure out where
    some of the numbers came from to try to justify the $140 value per unit “Alisa
    had claimed for the previous valuation because she had said that had come
    from Blue and Company,” but “[i]t was clear that it had not come from Blue
    and Company.”            Transcript Volume 5 at 131-132. We cannot say that the trial
    court’s conclusion that Julie’s claim was not frivolous is erroneous or that it
    abused its discretion.
    B.      Subscription Agreement
    [48]   BioConvergence and Alisa assert that the trial court erred in holding that the
    Subscription Agreement did not allow indemnification for first party claims and
    that they did not prove that the attorney fees were caused by Julie’s breach.
    They argue that each party had first party indemnification relief against the
    other in the event of a breach. They assert that the attorney fees sought relate to
    the defense of Julie’s lawsuit and are recoverable for Julie’s breach under the
    indemnification provision, and that recovery of attorney fees is allowed
    regardless of whether the indemnity provision references attorney fees. They
    acknowledge that “Indiana law is unsettled with respect to the recovery of
    attorney fees in enforcing an indemnity provision which lacks specific attorney
    fee language.” Appellants’ Brief at 46.
    [49]   BioConvergence and Alisa argue that this Court should hold that the
    indemnification provision applies to first party claims and allows for
    BioConvergence’s recovery of attorney fees in defending against Julie’s claims
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 48 of 54
    and enforcing the indemnity provision. They assert that BioConvergence was
    damaged by Julie’s breach, and that BioConvergence could not have sold units
    to Julie in a private placement without her representation that she had the
    business acumen to evaluate the investment. They claim that “[b]ut for [Julie’s]
    representation, she would not have become a [BioConvergence] investor and
    would not have had an opportunity to file suit against [BioConvergence and
    Alisa] relating to her [BioConvergence] investment.” 
    Id. at 48.
    They conclude
    that the trial court clearly erred in holding that they failed to prove that their
    attorney fees were caused by Julie’s breach of the Subscription Agreement.
    [50]   Julie argues that the Subscription Agreement does not provide a basis for
    awarding attorney fees. She asserts that the indemnity agreement does not
    apply to first party claims. She argues that “[n]owhere does section 5(a), or any
    other provision of the Agreement, state that [Julie] shall pay attorneys’ fees
    incurred by [BioConvergence] or Alisa if [Julie] breaches the Agreement.”
    Appellee’s Brief at 27. She states that Indiana follows the general rule that each
    party must pay his or her own attorney fees. She also asserts that
    indemnification clauses are strictly construed and the terms are required to be
    clear and unequivocal.
    [51]   The court found that the Subscription Agreement, which “contained neither a
    specific provision for recovery of attorney fees nor clear language that it applied
    to first party claims, does not permit [BioConvergence and Alisa] to recover
    their attorney fees and expenses incurred in defending the plaintiff’s action or
    incurred in pursuing their counterclaim.” Appellants’ Appendix Volume 2 at
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018    Page 49 of 54
    57. The court also found that BioConvergence and Alisa “failed to prove that
    the attorney fees they incurred in defending the action and pursuing their
    counterclaim were caused by plaintiff’s breach of section 2(b) of the
    subscription agreement.” 
    Id. [52] “[I]ndemnification
    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). Indemnity agreements are subject to the
    standard rules and principles of contract construction. Flaherty & Collins, Inc. v.
    BBR-Vision I, L.P., 
    990 N.E.2d 958
    , 967 (Ind. Ct. App. 2013) (citing L.H.
    Controls, Inc. v. Custom Conveyor, Inc., 
    974 N.E.2d 1031
    , 1047 (Ind. Ct. App.
    2012)), trans. denied. Interpretation of a written contract, including an
    indemnity provision, is a question of law. 
    Id. We review
    questions of law de
    novo and owe no deference to the trial court’s legal conclusions. 
    Id. [53] “The
    general legal understanding of indemnity clauses is that they cover ‘“the
    risk of harm sustained by third persons that might be caused by either the
    indemnitor or the indemnitee. It shifts the financial burden for the ultimate
    payment of damages from the indemnitee to the indemnitor.”’” 
    Id. (quoting L.H.,
    974 N.E.2d at 1047 (quoting Indianapolis City Market Corp. v. MAV, Inc.,
    
    915 N.E.2d 1013
    , 1023 (Ind. Ct. App. 2009))). The court in Flaherty stated:
    As we noted in L.H., other authorities recognize this general
    
    understanding. 974 N.E.2d at 1047-48
    (citing Am. Jur. 2d 415,
    Indemnity § 1 (2005) (“In general, indemnity is a form of
    compensation in which a first party is liable to pay a second party
    for a loss or damage the second party incurs to a third party”);
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018     Page 50 of 54
    C.J.S. 94, Indemnity § 1 (2007) (“In a contract of indemnity, the
    indemnitor, for a consideration, promises to indemnify and save
    harmless indemnitee against liability of indemnitee to a third
    person or against loss resulting from such liability”)).
    
    Id. “There is
    no absolute prohibition against one party agreeing to indemnify
    the other party for first-party claims arising between those parties.” 
    Id. “Where the
    plain language of the provision requires first-party indemnification, then
    such indemnification is permitted.” 
    Id. (citing Sequa
    Coatings Corp. v. N. Ind.
    Commuter Transp. Dist., 
    796 N.E.2d 1216
    , 1229 (Ind. Ct. App. 2003) (noting that
    “the plain language” expressly stated, among other things, “‘any and all Causes
    of Action, as defined above, asserted by any parties and nonparties to this
    Agreement’”), clarified on reh’g, 
    800 N.E.2d 926
    , trans. denied). See also L.H.
    Controls, 
    Inc., 974 N.E.2d at 1048
    (discussing Fackler v. Powell, 
    891 N.E.2d 1091
    (Ind. Ct. App. 2008), trans. denied, observing that Fackler held that a husband
    was required to pay his ex-wife’s attorney fees after his breach of a dissolution
    property settlement agreement, which stated that each party agreed “to
    indemnify and save and hold the other harmless from all . . . expenses
    (including attorney’s fees) . . . incurred by reason of the indemnitor’s violation
    or breach of any of the terms and conditions hereof,” 
    Fackler, 891 N.E.2d at 1098
    , stating that “[i]t is clear that a divorce decree indemnity provision such as
    the one in Fackler would cover a first-party indemnity claim, i.e. where one
    party successfully sues the other for breach of contract and requests attorney
    fees,” and concluding, “[h]ere, by contrast, the [agreement] does not mention
    first-party claims.”).
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 51 of 54
    [54]   In Zebrowski & Assocs., Inc. v. City of Indianapolis, By & Through its Bd. of Directors
    for Utilities of its Dep’t of Pub. Utilities, which is cited by BioConvergence and
    Alisa, the Court held: “An indemnitee, who incurs legal expenses through
    defending an action against him for which he is entitled to indemnification, is
    entitled to recover the expense of creating his defense, including reasonable
    attorney fees.” 
    457 N.E.2d 259
    , 264 (Ind. Ct. App. 1983) (citing Employers’
    Liability Assurance Corp. v. Citizens Nat’l Bank of Peru, 
    85 Ind. App. 169
    , 
    151 N.E. 396
    (1926)). The Court held that “[t]he indemnitee may recover attorney fees
    from the indemnitor incurred through an original action which is settled, and
    also for the cost of prosecuting the indemnity clause.” 
    Id. (citing Price
    v. Amoco
    Oil Co., 
    524 F. Supp. 364
    (S.D. Ind. 1981)). The Court also observed: “In the
    present case, a specific provision for attorney fees is included in the indemnity
    clause, and only recovery of fees concerning the original suit was requested.”
    
    Id. [55] In
    Dale Bland Trucking, Inc. v. Kiger, the Court commented on Zebrowski as
    follows:
    Bland argues that Zebrowski & Associates, Inc. v. City of Indianapolis
    (1983), Ind. App., 
    457 N.E.2d 259
    , 264, supports its contention
    that an indemnitee may recover attorney’s fees from the
    indemnitor incurred in prosecuting the indemnity clause. The
    Zebrowski court made such statement in dicta when citing a
    federal case and did not apply the language to the case. 
    Id. Instead, the
    court stated that the indemnity clause for attorney’s
    fees referred to recovery of fees concerning the original lawsuit
    and not of the indemnity action. 
    Id. Therefore, Zebrowski
    does
    not support Bland’s contention.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018       Page 52 of 54
    
    598 N.E.2d 1103
    , 1105 (Ind. Ct. App. 1992) (footnote omitted), trans. denied.
    The Court stated: “We note that the federal case cited in Zebrowski was Price v.
    Amoco Oil Co. (S.D. Ind. 1981), 
    524 F. Supp. 364
    . The Price court permitted an
    award of attorney’s fees incurred in prosecuting the indemnity agreement
    because the lease contained very specific language providing for such recovery.”
    Dale Bland Trucking, 
    Inc., 598 N.E.2d at 1105
    . The Court also rejected Bland’s
    argument that the language “from any and all . . . suits, losses” included
    attorney fees incurred in the prosecution of the indemnity action. 
    Id. at 1106.
    The Court held:
    The indemnity clause in Zebrowski provided, “Contractor shall
    defend, indemnify and hold harmless the Utility . . . from and
    against all claims, damages, losses and expenses, including
    attorney fees . . . .” 
    Zebrowski, 457 N.E.2d at 262
    . The court
    determined that the clause referred only to attorney’s fees
    incurred in the underlying tort actions, and not the prosecution of
    the indemnity clause. 
    Id. at 264.
    Likewise, the indemnity clause
    in the case at bar does not refer to the recovery of attorney’s fees
    in the indemnity action. The trial court was correct in denying
    an award for attorney’s fees incurred in the present litigation.
    
    Id. [56] We
    find the reasoning in Dale Bland Trucking instructive. Here, the indemnity
    provision did not explicitly permit an award of attorney fees nor refer to the
    recovery of attorney fees in an indemnity action. Accordingly, we cannot say
    that reversal is warranted.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 53 of 54
    Conclusion
    [57]   For the foregoing reasons, we affirm the trial court’s denial of attorney fees.
    [58]   Affirmed.
    Baker, J., and Riley, J., concur.
    Court of Appeals of Indiana | Opinion 53A04-1708-PL-1810 | June 1, 2018   Page 54 of 54