Weidner and Company, P.C. v. Jurgonski & Fredlake CPAs, P.C., Greg Jurgonski, and John Fredlake (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 31 2018, 8:44 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Donald J. Schmid Jeffery A. Johnson
Law Offices of Donald J. Schmid Daniel R. Appelget
South Bend, Indiana May Oberfell Lorber
Mishawaka, Indiana
John D. LaDue
Paul Edgar Harold
LaDue Curran & Kuehn LLC
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Weidner and Company, P.C., October 31, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-MI-535
v. Appeal from the St. Joseph
Superior Court
Jurgonski & Fredlake CPAs, The Honorable Steven L.
P.C., Greg Jurgonski, and John Hostetler, Judge
Fredlake, Trial Court Cause No.
Appellees-Defendants. 71D07-1603-MI-79
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 1 of 17
Statement of the Case
[1] Weidner and Company, P.C. (“Weidner”) filed a complaint against Jurgonski
& Fredlake CPAs, P.C., Greg Jurgonski, and John Fredlake (collectively
“Jurgonski and Fredlake”) alleging breach of an asset purchase agreement,
fraudulent inducement, and breach of employment agreements. Jurgonski and
Fredlake, whose employment with Weidner had just been terminated, filed an
answer and counterclaims, and they sought a declaratory judgment on the issue
of whether Weidner had fired them for cause under the terms of their
employment agreements. Following an evidentiary hearing on their
counterclaim for declaratory judgment, the trial court concluded that Weidner
had not fired Jurgonski and Fredlake for cause.
[2] Weidner appealed the declaratory judgment. While that appeal was pending,
Weidner moved to remand this case to the trial court in order to file a Trial
Rule 60(B)(2) motion to set aside the declaratory judgment based on alleged
newly discovered evidence. We granted that motion. On remand, following an
evidentiary hearing, the trial court denied Weidner’s Rule 60(B)(2) motion.
[3] Weidner now appeals and presents the following issues for our review:
1. Whether the trial court erred when it concluded that
Weidner did not terminate Jurgonski’s and Fredlake’s
employment for cause.
2. Whether the trial court abused its discretion when it
denied Weidner’s motion to set aside the declaratory
judgment based on alleged newly discovered evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 2 of 17
[4] We affirm.
Facts and Procedural History
[5] In November 2014, Weidner, an accounting firm in Plymouth, acquired
Jurgonski and Fredlake CPAs, P.C., an accounting firm in South Bend, through
an asset purchase agreement, and Weidner entered into employment
agreements with Jurgonski and Fredlake. The employment agreements
included two-year restrictive covenants preventing Jurgonski and Fredlake from
competing with Weidner if Weidner terminated their employment for cause.
The employment agreements defined “for cause” as follows:
For the purpose of this Agreement, “for cause” shall mean any of
the following:
(1) conviction or guilty plea to a felony;
(2) disqualification by a state licensing board;
(3) perpetration of an act of fraud or embezzlement or other act
of dishonesty by Employee in connection with the performance
of Employee’s duties as an employee of the Company;
(4) substance abuse or use of illegal drugs that, in the
reasonable judgment of the Company, impairs Employee’s
performance of his duties as an employee of the Company;
(5) inaccurate work or late work;
(6) alienation of co-workers or clients of Company;
(7) any other conduct [that] is injurious to or adverse to the
employer-employee relationship.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 3 of 17
For cause is to be interpreted from a reasonableness standpoint
under the circumstances and is not intended to provide the
Company an arbitrary or capricious basis for termination of the
Employment Agreement. The “for cause” condition violation
must be one which has a meaningful effect on the ability of the Company
to serve its clients.
Appellant’s App. Vol. II at 210-11 (emphases added).
[6] In February 2016, after reviewing the accounting work performed by Jurgonski
and Fredlake during the 2015 tax season, Weidner found numerous errors that
Jurgonski and Fredlake had allegedly made, including:
• Fredlake took a $35,554.80 deduction for taxes on a return
that the client had never paid.
• Fredlake failed to report $119,432 of income on a
Michigan tax return resulting in $8,000 more in taxes for
the client.
• Fredlake missed a $197,963 capital loss carryover for a
client resulting in a significant increase in tax.
• Jurgonski failed to record $3.2 million in loans on a
client’s balance sheet or to disclose those loans in the notes
of the financial report.
• Jurgonski and Fredlake had been concealing from
Weidner that they were making thousands of dollars in
payments to clients to settle penalties those clients had
incurred due to poor accounting work.
[7] In March 2016, Jurgonski and Fredlake filed a lawsuit against Weidner
contending that Weidner had defaulted on payments owed under the parties’
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 4 of 17
November 2014 asset purchase agreement. In May 2016, Weidner notified
Jurgonski and Fredlake that Weidner was terminating their employment for
cause. And Weidner filed its complaint against Jurgonski and Fredlake alleging
breach of the asset purchase agreement, fraudulent inducement, and breach of
the employment agreements. Jurgonski and Fredlake filed an answer,
affirmative defenses, and counterclaims, including a counterclaim for a
declaratory judgment on the issue of whether Weidner had terminated their
employment for cause. The trial court consolidated the parties’ separate causes
of action and set Jurgonski and Fredlake’s declaratory judgment counterclaim
for a bench trial on September 20.
[8] The parties stipulated that whether the parties’ non-compete clause would take
effect depended on a determination of whether Jurgonski and Fredlake were
terminated for cause. Following the bench trial, the trial court concluded that
Weidner had not carried its burden to prove that it had terminated Jurgonski
and Fredlake for cause. In particular, with respect to the alleged errors made by
Jurgonski and Fredlake, the trial court found and concluded as follows:
Jurgonski and Fredlake did make errors while they were
employed with [Weidner]. However, [Weidner] (as the party
with the burden of proof) introduced no evidence that the errors
were beyond what is normal. Further, there were disagreements
between [Weidner] and Jurgonski and Fredlake as to certain
accounting principles. However, such disagreements are
probably to be expected in any profession. There was no
evidence that the disagreements were extraordinary.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 5 of 17
In short, there was no evidence that any client suffered any
disadvantage or harm. Both Daniel Weidner and Jared Weidner
speculated that a few of the errors could have potentially harmed
clients. However, no actual harm was demonstrated. Certainly,
there was no evidence that the errors had a “meaningful effect on
the ability of [Weidner] to serve its clients.”
Id. at 34. Thus, the trial court concluded that Weidner had not terminated the
employment of Jurgonski and Fredlake for cause, “as that term is used in the
employment agreements.” Id. at 36.
[9] Weidner timely filed a notice of appeal,1 but while that appeal was pending,
Weidner moved to remand this case to the trial court for consideration of a
Trial Rule 60(B)(2) motion. Weidner alleged that it had newly discovered
evidence to support its argument that it had fired Jurgonski and Fredlake for
cause. We granted Weidner’s motion.
[10] At a hearing on Weidner’s Trial Rule 60(B)(2) motion, Weidner argued that it
had found the following alleged newly discovered evidence after the September
2016 trial:
• the results of a November 2016 review by Weidner
employee Erin McDonald uncovering multiple errors
Fredlake had made with respect to 2014 tax returns filed
on behalf of Weidner’s clients (“2014 tax return errors”)
1
The trial court found that there was no just reason to delay an appeal and entered final judgment under
Trial Rule 54(B).
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 6 of 17
• the results of a December 2016 peer review audit
uncovering multiple errors Jurgonski had made in the
course of his employment that Weidner had not
discovered prior to the audit (“peer review audit results”)
• Weidner employee Chad McDonald’s discovery on
January 11, 2018, that, in February 2016, Jurgonski had
deleted audit procedures suggested by an auditing
computer program in the course of performing an audit for
Weidner (“Jurgonski audit errors”)
At the conclusion of the hearing, the trial court denied Weidner’s Trial Rule
60(B)(2) motion. This appeal ensued.
Discussion and Decision
Issue One: Declaratory Judgment
[11] Weidner first contends that the trial court erred when it concluded that Weidner
had not fired Jurgonski and Fredlake for cause. The court’s judgment followed
an evidentiary hearing at which the court heard witness testimony, and the
court’s judgment includes findings of fact and conclusions thereon. Our “usual
review” of such judgments is under the clearly erroneous standard. Anderson v.
Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1206 n.6 (Ind. Ct. App 2014),
trans. denied; see, e.g., Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015).
[12] As the Indiana Supreme Court has explained, under the clearly erroneous
standard we apply “a two-tiered standard of review by first determining
whether the evidence supports the findings and then whether the findings
support the judgment.” Masters, 43 N.E.3d at 575 (quotation marks omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 7 of 17
“[D]ue regard shall be given to the opportunity of the trial court . . . to judge the
credibility of the witnesses.” Id. “[W]e will reverse only upon a showing of
clear error—that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. (quotation marks omitted). However, we review
the trial court’s conclusions on questions of law de novo. Gertiser v. Stokes (In re
Marriage of Gertiser), 45 N.E.3d 363, 369 (Ind. 2015).
[13] Weidner’s argument on this issue is two-fold. Weidner first contends that the
trial court “misinterpreted the ‘cause’ provision” in the employment agreements
to require a showing that its clients were actually harmed as a result of the
alleged errors made by Jurgonski and Fredlake. Appellant’s Br. at 25. Weidner
also contends that, had the trial court correctly interpreted and applied the for
cause provision, it would have concluded that Weidner had fired Jurgonski and
Fredlake for cause. We address each contention in turn.
Interpretation of For Cause
[14] Weidner maintains that the trial court misinterpreted for cause under the
employment agreements “to require actual harm” to Weidner’s clients.
Appellant’s Br. at 27. Weidner asserts that such an interpretation was
erroneous because under the employment agreements a “‘for cause’ condition
violation” does not require a showing of actual harm to Weidner’s clients but
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 8 of 17
the violation must have had “a meaningful effect on the ability of [Weidner] to
serve its clients.”2 Appellant’s App. Vol. II at 211.
[15] In support of that contention, Weidner asserts that the trial court concluded in
error that Weidner “had not shown cause [in firing Jurgonski and Fredlake]
because ‘there was no evidence that any client suffered any disadvantage or
harm.’” Appellant’s Br. at 25 (emphasis added) (quoting Appellant’s App. Vol.
II at 34). While Weidner correctly quotes the trial court, Weidner
mischaracterizes the court’s statement when it is read in context. The trial
court did not state, “Weidner did not prove that it fired Jurgonski and Fredlake
for cause because there was no evidence that any client suffered any
disadvantage or harm.” Rather, in the context of its findings and conclusions,
the trial court found no evidence of actual harm related to only one category of
misconduct against Jurgonski and Fredlake. In particular, with respect to
Weidner’s allegations that Jurgonski and Fredlake had made errors and had
engaged in disagreements with Weidner, the trial court noted a lack of evidence
of “disadvantage or harm” to “any client” as a result of “errors” and
2
Weidner did not include a transcript from the hearing on the for cause declaratory judgment action, so we
do not know what argument, if any, Weidner made to the trial court in support of any particular
interpretation of this provision of the employment agreements. On appeal, Weidner asserts that the “purpose
of [the language of the provision] is to prevent ticky-tack terminations; it does not require that Jurgonski’s
and Fredlake’s screw-ups actually have harmed clients.” Appellant’s Br. at 27.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 9 of 17
“disagreements,” and the court found that “no actual harm was demonstrated”
despite evidence of potential harm.3 Appellant’s App. Vol. II at 34.
[16] Weidner acknowledges that “evidence of harm to clients could show an effect
on Weidner[’s] ability to serve its clients.” Appellant’s Br. at 28. In other
words, Weidner concedes that evidence of actual harm to clients is a relevant
consideration with respect to the for cause determination. Thus, the trial
court’s findings of no actual harm with respect to some of Weidner’s claims of
misconduct are appropriate and do not indicate a misinterpretation of the
employment agreements’ definition of for cause. Appellant’s Br. at 28. And,
significantly, the trial court not only found no actual harm but also found “no
evidence that the errors had a ‘meaningful effect on the ability of [Weidner] to
serve its clients.’” Id.[17] In sum, in context, the court’s statements regarding the lack of evidence of
“disadvantage or harm” to clients belies Weidner’s contention that the court
misinterpreted the for cause provision. On the issue of whether Weidner fired
Jurgonski and Fredlake for cause, the trial court did not define that phrase to
require a showing of actual harm to clients. Rather, consistent with the
definition of for cause found in the employment agreements, the trial court
considered five categories of Weidner’s allegations and expressly concluded in
each instance that the evidence showed that the alleged errors by Jurgonski and
3
The trial court did not make findings of no actual harm with respect to the four other categories of
allegations addressed in the findings and conclusions.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 10 of 17
Fredlake did not have “a meaningful effect on the ability of [Weidner] to serve
its clients.” Id. at 33-35. We hold that the trial court did not misinterpret for
cause to require proof of actual harm to Weidner’s clients.
Application of For Cause
[18] Weidner further contends that the trial court erred when it concluded that
Weidner had not fired Jurgonski and Fredlake for cause. In support of that
contention, Weidner cites evidence that Jurgonski and Fredlake had committed
“several non-trivial errors” while employed at Weidner, including:
“[c]ontriving a phantom $35,554.80 deduction for property-tax payments that
never existed”; “[m]issing $119,432 in income that made an $8,000 difference
in the taxes the client had to pay”; “[i]gnoring nearly $200,000 [in] capital
losses that needed to be carried over”; and “[f]ailing to record $3.2 million in
loans on a client’s balance sheet.” Appellant’s Br. at 29. Weidner
acknowledges that it had “(fortunately) caught” these errors “before any clients
got hurt[,]” but Weidner asserts that the errors had a meaningful effect on the
ability of Weidner to serve its clients because they “wasted valuable time,”
“caused stress” on Weidner’s staff and “hostility with clients,” and resulted in
the filing of 300 extensions on clients’ 2015 tax returns. Appellant’s Br. at 30.
[19] But the trial court ultimately found and concluded as follows: “Having
carefully weighed all of the evidence presented, the Court finds that the
testimony and other evidence presented by Jurgonski and Fredlake was the
most credible evidence presented. None of their actions had a meaningful effect
on the ability of [Weidner] to serve its clients.” Appellant’s App. Vol. II at 35.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 11 of 17
Weidner’s contentions on appeal amount to a request that we reweigh the
evidence, which we cannot do. The trial court’s declaratory judgment in favor
of Jurgonski and Fredlake on the for cause issue is not clearly erroneous.
Issue Two: Newly Discovered Evidence
[20] Weidner contends that the trial court abused its discretion when it denied its
Trial Rule 60(B)(2) motion to set aside the declaratory judgment. Weidner
maintains that the trial court should have set aside the declaratory judgment
based upon alleged newly discovered evidence Weidner presented at the
hearing on its motion. Our standard of review is well settled:
Our review of a trial court’s decision on a motion for relief from
judgment pursuant to Trial Rule 60(B) is limited to determining
whether the trial court abused its discretion. Hill v. Ramey, 744
N.E.2d 509, 513 (Ind. Ct. App. 2001). Thus, we will reverse the
judgment only if it goes against the logic and effect of the facts or
the trial court has misinterpreted the law. Id. Further, we will
not reweigh the evidence, and we give the trial court’s order
substantial deference. Id. When a new trial is sought based on
newly[]discovered evidence, the appellant must show, among
other things, that the evidence could not have been discovered
before the trial by the exercise of due diligence. Elkhart Cmty.
Sch. v. Yoder, 696 N.E.2d 409, 415 (Ind. Ct. App. 1998). A bare
assertion that reasonable diligence has been used is insufficient to
show due diligence; the appellant must set out facts showing due
diligence has been exercised. Id. Moreover, a finding of due
diligence does not rest upon abstract conclusions about, or
assertions of, its exercise but upon a particularized showing that
all the methods of discovery reasonably available to counsel were
used and could not uncover the newly[]found information. Tyson
v. State, 626 N.E.2d 482, 485 (Ind. Ct. App. 1993) (quoting Lyles
v. State, 576 N.E.2d 1344, 1349 (Ind. Ct. App. 1991)).
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 12 of 17
Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App. 2002), trans. denied.
[21] At the January 17, 2018, evidentiary hearing on Weidner’s Trial Rule 60(B)(2)
motion, Weidner proffered evidence that it had allegedly discovered for the first
time after the September 2016 bench trial. Again, that evidence consisted of the
2014 tax return errors, the peer review audit errors, and the Jurgonski audit
errors.
[22] Weidner asserts two grounds in support of its contention that the trial court
abused its discretion when it denied its motion to set aside the judgment.
Weidner first contends that two of the trial court’s conclusions “are based on a
mistaken understanding of Indiana law.” Appellant’s Br. at 33. And Weidner
also contends that, had the trial court “applied the correct legal framework[,]
. . . it should have concluded that the accounting errors that [Weidner]
uncovered after trial qualified as newly discovered evidence.” Id. at 35. We
address each contention in turn.
Legal Analysis
[23] Weidner contends that the trial court misunderstood the law on what
constitutes newly discovered evidence because it: (1) “hinged its analysis on
what it believed to be ‘most important,’ namely, that the records in which the
errors were discovered were ‘in the exclusive possession and control of’
Weidner . . . before trial”; and (2) “concluded that the December 2016 peer
review could not be ‘newly discovered evidence’ because that peer review was
not in existence at the time of the September 2016 trial.” Appellant’s Br. at 32-
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 13 of 17
33. In support of those contentions, Weidner asserts, correctly, that “post-trial
analysis of evidence in a party’s possession before trial can qualify as newly
discovered evidence.” Id. at 33 (emphases original). However, Weidner’s
attempts to analogize the alleged newly discovered evidence in this case to that
in Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265 (Ind. 2008), and
Bunch v. State, 964 N.E.2d 274 (Ind. Ct. App. 2012), trans. denied, is unavailing.
[24] In Speedway, the proffered newly discovered evidence involved test results
obtained by Speedway analyzing a stain on a pair of jeans that Speedway had
not known existed until the first day of trial and that had been in the plaintiff’s
exclusive possession at all times. 885 N.E.2d at 1272. In contrast, here, as the
trial court correctly found, all of the alleged newly discovered evidence was in
Weidner’s possession at all times, and the information found as a result of the
December 2016 audit could have been found prior to trial. See Hartig, 760
N.E.2d at 671. And in Bunch, the newly discovered evidence was the result of
advances in science, particularly fire victim toxicology analysis, that did not
exist until after the defendant’s trial and was, therefore, not discoverable prior
to trial. 964 N.E.2d at 285. In contrast, here, Weidner does not allege any
advances in accounting audit procedures that would have made the alleged
newly discovered evidence impossible to find prior to trial. Simply put, neither
Speedway nor Bunch supports Weidner’s contention on this issue. We hold that
the trial court understood and correctly applied the law when it concluded that
the proffered evidence was not newly discovered.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 14 of 17
Abuse of Discretion
[25] Weidner next contends that the trial court abused its discretion when it
concluded that the proffered evidence was not newly discovered. In particular,
Weidner asserts that “it was simply not possible for [Weidner] to do a special
review” of the 2014 tax returns prepared or reviewed by Fredlake prior to trial.
Appellant’s Br. at 36. And Weidner maintains that it “could not have had a
peer review performed before” November 2016. Id. at 39. But the trial court
found Weidner’s evidence not credible and rejected those arguments, and
Weidner’s contentions on this issue amount to another request that we reweigh
the evidence, which we cannot do.
[26] “We have long recognized that a litigant is obliged ‘to search for evidence in the
place where, from the nature of the controversy, it would be most likely to be
found.’” Hartig, 760 N.E.2d at 671 (quoting Elkhart Cmty. Sch. v. Yoder, 696
N.E.2d 409, 415 (Ind. Ct. App. 1998)). Here, the evidence supports the trial
court’s determination that Weidner could have found all of the alleged newly
discovered evidence had it searched its own files in preparation for trial.
Indeed, Weidner presented evidence at the September 2016 trial regarding
multiple errors Jurgonski and Fredlake had made with respect to 2015 tax
returns. As the trial court found, those errors “should have alerted [Weidner]
that there might be similar alleged deficiencies with respect to the 2014 Tax
Returns. Weidner was on inquiry notice. Yet, no effort whatsoever was made
to review 2014 Tax Returns prior to the Trial.” Appellant’s App. Vol. II at 43.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 15 of 17
[27] Further, with respect to the “hidden” deletions Jurgonski had made in the
course of an audit in February 2016, Weidner employee Chad McDonald
testified that, if he had looked for that evidence prior to his discovery of it in
January 2018, he “could have found it.” Tr. at 221. And the trial court rejected
Weidner’s argument that it could not have found the errors Weidner employee
Erin McDonald discovered in November 2017 prior to trial because of a lack of
manpower. The evidence shows that Erin found the errors after spending fifty-
nine hours looking at Weidner’s files. And, as the trial court found, if Weidner
did not have the staff to do the review prior to trial, it could have hired someone
to do it. Finally, the evidence shows that Weidner could have, in preparation
for trial, performed its own audit like the one performed in December 2016. As
the trial court found, Weidner “simply chose not to review those records prior
to Trial.” Appellant’s App. Vol. II at 45.
[28] We hold that Weidner has not shown that the trial court abused its discretion
when it denied Weidner’s motion to set aside the declaratory judgment under
Trial Rule 60(B)(2).
Conclusion
[29] Weidner presented evidence that Jurgonski and Fredlake committed numerous
errors, some of which may have been sufficient grounds to fire Jurgonski and
Fredlake for cause under the common law employment at will doctrine. But
the parties’ employment agreements controlled here and defined termination for
cause to require proof that inaccurate work or other errors had “a meaningful
effect on the ability” of Weidner to serve its clients. The trial court found
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 16 of 17
Jurgonski and Fredlake’s evidence more credible than Weidner’s evidence on
that issue and entered judgment for Jurgonski and Fredlake. We cannot
reweigh the evidence on appeal, and we affirm the trial court. Further,
Weidner has not demonstrated that the trial court abused its discretion when it
denied Weidner’s Trial Rule 60(B)(2) motion to set aside the declaratory
judgment.
[30] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-535 | October 31, 2018 Page 17 of 17