London Witte Group, LLC v. City of Marion

FILED

Oct 10 2023, 8:46 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Jeffrey C. Gerish Philip A. Whistler

Plunkett Cooney Jenny R. Buchheit

Bloomfield Hills, Michigan Eric J. McKeown

Ice Miller LLP

Crystal G. Rowe Indianapolis, Indiana

New Albany, Indiana

IN THE

COURT OF APPEALS OF INDIANA

London Witte Group, LLC, October 10, 2023

Appellant-Defendant, Court of Appeals Case No.

22A-MI-2060

v. Appeal from the Grant Superior

Court

City of Marion, The Honorable David A. Happe,

Appellee-Plaintiff. Special Judge

Trial Court Cause No.

27D03-1612-MI-168

Opinion by Judge Bradford

Judges Riley and Weissmann concur.

Bradford, Judge.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 1 of 35

Case Summary

[1] London Witte Group, LLC (“LWG”) and the City of Marion (“the City”) have

been engaged in litigation relating to the financing of a construction project in

downtown Marion since September 29, 2017. The matter came before this

court and the Indiana Supreme Court in 2020 and 2021, respectively. In the

instant appeal, which follows a jury trial, LWG contends that the trial court

abused its discretion in denying its motions for a directed verdict and its

subsequent motion to correct error. LWG alternatively contends that the jury’s

verdict is excessive. For its part, the City contends that the trial court acted

within its discretion in denying LWG’s motions and that the jury’s verdict is

supported by the evidence. We affirm.

Facts and Procedural History 1

[2] As is stated above, this matter has previously come before both this Court and

the Indiana Supreme Court. Our opinion issued in the prior appeal sets forth

the facts relating to the parties’ underlying dispute as follows:

A few years before 2008 or 2009, the YMCA in Marion moved

into a new space, leaving the old YMCA building in downtown

Marion vacant. In 2008 or 2009, the City began discussions with

Michael An, a developer from California. An proposed a

redevelopment of the old YMCA building into a combination of

hotel, restaurant, retail, and commercial spaces [(“the YMCA

1

We held oral argument in this case on September 20, 2023, in our courtroom in the Indiana Statehouse.

We commend counsel for the quality of their written submissions and oral presentations.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 2 of 35

project”)]. He estimated that the project would cost around $5.5

million. The City was willing to provide bond financing in the

amount of $2.5 million, meaning that An had to come up with $3

million from other sources.

The core of the City’s project team was Mayor Wayne Se[y]bold,

Director of Development Darren Reese, Bruce Donaldson of

Barnes and Thornburg, and Bob Swintz of LWG. Reese was the

point person on the project. Donaldson, who served as bond

counsel, reported to Reese. Swintz served as financial advisor.

The bonds would be funded from a tax-increment financing

(TIF) district, with Swintz’s role being to determine “how much

room is in the TIF district to do this project.” Appellant’s App.

Vol. II p. 197.[ ] Essentially, Swintz’s primary job was to ensure

that the City could pay back the bonds.

First Farmers Bank … emerged as the prospective bond buyer.

The Bank and the City each expected that An would provide

proof that he had attained the additional $3 million in financing.

In December 2009, shortly before the bond issue, Swintz told the

Bank that he had spoken with Reese and Mayor Seybold and that

the City had “the comfort they need[ed] for the YMCA project.”

Appellant’s App. Vol. III p. 231. Reese and Donaldson were

included on the email and Reese later said that he had no reason

to dispute Swintz’s statement. A few days later, the Bank again

questioned whether An had the full funding in hand in

correspondence to Reese and Donaldson, reminding them that

the Bank “need[ed] to insure that there [were] sufficient funds to

complete the project at all times.” Id. at 234. Swintz responded

to the Bank, explaining that “[a]s far as the City is concerned the

developer had provided written documentation about the funding

to complete the project.” Id. at 237. Swintz later testified that he

“would not have come up with [his response] without talking to”

Reese, Mayor Seybold, or Donaldson. Appellant’s App. Vol II.

p. 239–40.

Meanwhile, on December 4, 2009, An, through Chad Seybold,

provided a memorandum of understanding [(“the Cho

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Memorandum”)] to Swintz. The [Cho Memorandum] was non-

binding and signed by Se Kwon Cho; it stated that Cho would

make $3 million available to An to complete the project. The

[Cho Memorandum] also indicated that it was not a final, legally

binding agreement, though both An and Cho signed it. Chad

indicated to Swintz that the [Cho Memorandum] was the proof

requested by the City and the Bank that An had the $3 million in

financing on hand. Years later, at the time of the litigation at

issue herein, neither Mayor Seybold nor Reese recalled knowing

about the [Cho Memorandum]. The City claims that Swintz

intentionally withheld the [Cho Memorandum] from the Bank

and the City.

Evidently, Swintz’s assurances satisfied the Bank, because the

bonds were issued on December 16, 2009. At some point,

construction began, but it was never completed. The City

refinanced the bonds in 2011, after which An continued to work

on the project and to look for investors.

In December 2013, four years after the bond issue, the Marion

Chronicle-Tribune published several critical articles about the

project and submitted several information requests. In response,

the City hired KPMG to perform a forensic audit of the project;

KMPG found no improprieties, though Chad failed to comply

with KPMG’s document requests. The State Board of Accounts

… also reviewed the project and found, in the spring of 2014, that

it was nearly completed.

In December 2015, An died. The project remained unfinished.

The City filed a complaint against An’s estate on December 8,

2016. The City entered into a tolling agreement with LWG on

February 13, 2017, which tolled the statute of limitations through

September 30, 2017. On September 29, 2017, the City filed an

amended complaint, adding Chad and LWG as defendants. The

primary allegation from which the City’s claims against LWG

stems is that LWG “not only failed to tell the City that An lacked

the money to complete the project, it prevented the Bank from

learning it—a fact which would have stopped, or at least

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substantially changed, the bond issue.” Appellant’s Br. p. 8. The

specific claims remaining against LWG are for negligence,

breach of fiduciary duty, and constructive fraud/unjust

enrichment.

During the discovery process, the City allegedly first became

aware of the [Cho Memorandum]. Additionally, discovery has

revealed that bond proceeds were used to provide personal

benefits to Mayor Seybold, including payment of the premium on

a life insurance policy, cash payments to Mayor Seybold’s wife,

and contributions to Mayor Seybold’s political campaigns.

Moreover, An was allegedly told that the City would invest in his

project only if he hired the Mayor’s brother, Chad.

On May 17, 2019, LWG filed a motion for summary judgment

on each of the three claims against it. LWG’s motion focused on

the statute of limitations for each claim, arguing that the

complaint was filed outside the limitations period. During the

oral argument on the summary judgment motion, counsel for the

City conceded that “in the spring of 2014, the City ... certainly

had some concerns about the misapplication of bond proceeds.”

Tr. Vol. II p. 36.

On July 8, 2019, the trial court entered an order granting LWG’s

motion with respect to the claims for negligence and breach of

fiduciary duty and denying it with respect to the claim for

constructive fraud/unjust enrichment. In pertinent part, the trial

court found as follows:

The negligence and breach of fiduciary duty Counts

are based on the two-year statute of limitations

contained in Ind. Code § 34-11-2-4(a). The two-year

period had expired long before February 16, 2017

when LWG signed a tolling agreement with the City.

LWG’s work for the City as it relates to this case was

divided into two parts:

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• The December 1, 2009 Series 2009 Bonds for a

principal amount of $2,500,000; and

• The February 15, 2011 Refinancing of the 2009

Bonds and consolidation of obligations from other

City projects.

LWG’s work on the 2009 Bonds and its work on the

2011 Refinancing are intertwined. At the latest the

City became aware that bond funds may have been

misappropriated in the Spring of 2014. As a result

the City’s Corporate Counsel employed a forensic

accounting firm to investigate and the City requested

an investigation by the State Board of Accounts. The

Court determines that at the latest the statute of

limitations ... began to run as of the Spring of 2014.

The Court finds that the City may not rely upon the

continuous representation nor the adverse

domination nor fraudulent concealment ... to extend

the begin date for the two-year statute of

limitations....

***

The Court denies the relief requested in the

[summary judgment motion] as to the constructive

fraud/unjust enrichment claim. That claim is based

on the six-year statute of limitations contained in I.C.

§ 34-11-2-7(4) and did not begin to run until LWG’s

work on the 2011 Refinancing was completed.

Appealed Order p. 1–2. The trial court deemed the grant of

summary judgment on the first two counts to be a final and

appealable judgment; it later certified the denial of summary

judgment on the third count for interlocutory appeal.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 6 of 35

City of Marion v. London Witte Grp., LLC, 147 N.E.3d 362, 365–67 (Ind. Ct. App.

2020) (cleaned up, bracketed information added) (“City of Marion I”), trans.

granted.

[3] On appeal, we concluded that the City’s negligence and breach of contract

claims were barred by the applicable two-year statute of limitations, stating as

follows:

the undisputed evidence in the record shows that the City had

enough information long before February 2015 to have caused it

to inquire further regarding possible wrongdoing. And, in fact, it

did inquire further by instituting investigations from KPMG and

the State Board of Accounts. Therefore, we find that the

discovery rule bars these two claims against LWG.

Id. at 370–71. We further concluded that neither the continuous-representation

doctrine, the doctrine of fraudulent concealment, nor the adverse-domination

doctrine applied to toll the statute of limitations period. Id. at 371–73. We also

concluded that the trial court had erred in applying a six-year statute of

limitation to the City’s constructive fraud/unjust enrichment count, concluding

that a two-year statute of limitations governed the claim. Id. at 374. As such,

we affirmed the portion of trial court’s order relating to the negligence and

breach-of-contract claims, reversed the portion relating to the constructive-

fraud/unjust-enrichment count, and “remanded with instructions to enter

summary judgment in LWG’s favor on the City’s claim for constructive

fraud/unjust enrichment.” Id.

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[4] The City sought transfer, which the Indiana Supreme Court granted, vacating

our prior opinion. See City of Marion v. London Witte Grp., LLC, 169 N.E.3d 382

(Ind. 2021) (“City of Marion II”). The Indiana Supreme Court adopted the

doctrine of adverse domination as a potential avenue for tolling a statute of

limitation in Indiana, finding that “the doctrine, which has been significantly

developed over time in other jurisdictions, is a logical corollary of our discovery

rule.” Id. at 390. The Supreme Court limited the doctrine’s application to

situations where “intentional wrongdoing of some kind” is involved. Id. at 392.

Applying the doctrine to the facts at hand, the Supreme Court held that

the City sufficiently established facts to avoid the statute of

limitations defense on summary judgment. Drawing all

reasonable inferences in favor of the City, there are genuine

issues of material fact as to whether knowledge of the injury was

available to the City while Mayor Seybold was in office.

Moreover, there are genuine issues of material fact as to whether

[LWG] was complicit in Mayor Seybold’s wrongdoing.

Summary judgment “should not be granted when it is necessary

to weigh the evidence.” Bochnowski v. Peoples Fed. Sav. & Loan

Ass’n, 571 N.E.2d 282, 285 (Ind. 1991). After weighing the

evidence, a factfinder ultimately may not conclude that the City

proved Mayor Seybold’s adverse domination and [LWG]’s

complicity, but that is a matter for trial, not summary judgment.

Id. at 395. Finding that “[s]ummary judgment on all counts [was] inappropriate

as the City established facts in avoidance of the statute of limitations defense at

this stage,” the Supreme Court remanded the matter to the trial court for further

proceedings. Id. at 397.

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[5] On remand, the case proceeded to trial. At the conclusion of the City’s case-in-

chief, LWG moved for directed verdict on the issues of whether (1) the adverse-

domination doctrine applied and (2) the City had presented sufficient evidence

to support its negligence, fiduciary duty, and damages claims. The trial court

denied LWG’s motions for directed verdict “but in the interest of the jury’s

time, reserved the Court’s explanation of the ruling to be made by” a written

order, which was issued on May 23, 2022. Appellant’s App. Vol. II p. 73. The

trial continued, after which the jury returned a general verdict for the City, in

which it found the City’s total damages were $3,285,920.00 and that LWG was

95% responsible for the City’s damages. Based on its findings relating to

damages and fault, the jury entered a verdict against LWG in the amount of

$3,121,624.00. LWG filed a motion to correct error, which was denied by the

trial court on August 1, 2022.

Discussion and Decision

[6] At the conclusion of the City’s case-in-chief, LWG filed two motions for a

directed verdict. LWG challenges the trial court’s denial of both motions on

appeal, which follows the denial of LWG’s motion to correct error.

I. Standard of Review

[7] “The standard of review on a challenge to a directed verdict, also known as

judgment on the evidence, is the same as the standard governing the trial court

in making its decision.” Denman v. St. Vincent Med. Grp., Inc., 176 N.E.3d 480,

492 (Ind. Ct. App. 2021), trans. denied. Trial Rule 50(A) provides that “[w]here

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all or some of the issues in a case tried before a jury … are not supported by

sufficient evidence … the court shall withdraw such issues from the jury and

enter judgment thereon or shall enter judgment thereon notwithstanding a

verdict.” A party may move for a directed verdict “after another party carrying

the burden of proof or of going forward with the evidence upon any one or

more issues has completed presentation of his evidence thereon[.]” T.R. 50(A).

[8] The purpose of a Trial Rule 50(A) motion for judgment on the

evidence is to test the sufficiency of the evidence presented by the

non-movant. Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct.

App. 2016) (citing Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 839

(Ind. 2012)). The grant or denial of a motion for judgment on the

evidence is within the broad discretion of the trial court and will

be reversed only for an abuse of that discretion. Hill v. Rhinehart,

45 N.E.3d 427, 435 (Ind. Ct. App. 2015) (citing Levee v. Beeching,

729 N.E.2d 215, 223 (Ind. Ct. App. 2000)), trans. denied. Upon

appellate review of a trial court’s ruling on such a motion, the

reviewing court must consider only the evidence and reasonable

inferences most favorable to the nonmoving party. Belork v.

Latimer, 54 N.E.3d 388, 394-395 (Ind. Ct. App. 2016). A motion

for judgment on the evidence should be granted “only when there

is a complete failure of proof because there is no substantial

evidence or reasonable inference supporting an essential element

of the claim.” Stewart, 53 N.E.3d at 568 (quoting Raess v.

Doescher, 883 N.E.2d 790, 793 (Ind. 2008) (quotation omitted),

reh’g denied). Likewise, judgment on the evidence is proper if the

inference intended to be proven by the evidence cannot logically

be drawn from the proffered evidence without undue speculation.

Hill, 45 N.E.3d at 435 (citing Levee, 729 N.E.2d at 223[)].

Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124, 1131 (Ind. Ct. App. 2019),

trans. denied.

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[9] LWG appeals the denial of its motions for a directed verdict following the

denial of its motion to correct error. “[W]e review rulings on motions to correct

error for an abuse of discretion.” Id. “An abuse of discretion occurs when the

trial court’s decision is against the logic and effect of the facts and

circumstances before the court or if the court has misinterpreted the law.” In re

G.R., 863 N.E.2d 323, 325–26 (Ind. Ct. App. 2007).

II. Analysis

A. Denial of LWG’s Motions for a Directed Verdict

[10] The Indiana Supreme Court has held that “determining whether evidence was

sufficient ‘requires both a quantitative and a qualitative analysis.’” Purcell, 972

N.E.2d at 840 (quoting Am. Optical Co. v. Weidenhamer, 457 N.E.2d 181, 184

(Ind. 1983)). “Evidence fails quantitatively only if it is wholly absent; that is,

only if there is no evidence to support the conclusion.” Id. “If some evidence

exists, a court must then proceed to the qualitative analysis to determine

whether the evidence is substantial enough to support a reasonable inference in

favor of the non-moving party.” Id.

[11] “Qualitatively, ... [evidence] fails when it cannot be said, with

reason, that the intended inference may logically be drawn

therefrom; and this may occur either because of an absence of

credibility of a witness or because the intended inference may not

be drawn therefrom without undue speculation.” American

Optical, 457 N.E.2d at 184. The use of such words as

“substantial” and “probative” are useful in determining whether

evidence is sufficient under the qualitative analysis. Id.

Ultimately, the sufficiency analysis comes down to one word:

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“reasonable.” See, e.g., [Raess, 883 N.E.2d at 793] (“A motion for

judgment on the evidence should be granted only when there is a

complete failure of proof because there is no substantial evidence or

reasonable inference supporting an essential element of the claim.”

(emphasis added) (citation and internal quotation marks

omitted)); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (“If

there is any probative evidence or reasonable inference to be

drawn from the evidence in favor of the plaintiff or if there is

evidence allowing reasonable people to differ as to the result,

judgment on the evidence is improper.”); Teitge v. Remy Const. Co.

Inc., 526 N.E.2d 1008, 1010 (Ind. App. Ct. 1988) (“[J]udgment

on the evidence is proper only where there is a lack of evidence of

probative value upon one or more of the factual issues necessary

to support a verdict, and no reasonable inference in favor of the

plaintiff can be drawn from this evidence.”).

Id. (brackets, ellipsis, and emphasis in original).

[12] By its express language, Rule 50 acknowledges that a party must

do more than simply present some evidence; in addition, that

evidence must also be sufficient evidence. Unlike a motion for

summary judgment under Rule 56, the sufficiency test of Rule

50(A) is not merely whether a conflict of evidence may exist, but

rather whether there exists probative evidence, substantial

enough to create a reasonable inference that the non-movant has

met his burden.

Id. at 841. “The crux of the qualitative failure analysis under Rule 50(A) is

‘whether the inference the burdened party’s allegations are true may be drawn

without undue speculation.’” Id. (quoting Dettman v. Sumner, 474 N.E.2d 100,

105 (Ind. Ct. App. 1985)).

[13] Furthermore, we have concluded that

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if a defendant unsuccessfully moves for a judgment on the

evidence at the close of the plaintiff’s case-in-chief, presents his

own additional evidence thereafter, but renews his motion at the

conclusion of all evidence, the motion is preserved in the

traditional sense and is reviewed in light of only the evidence

introduced during the plaintiff’s case-in-chief. This explains why

it is advantageous for the defendant to renew the motion. Where

the defendant moves for judgment on the evidence at the close of

the plaintiff’s case-in-chief, presents his own evidence thereafter,

but fails to renew the motion at the conclusion of all evidence,

the motion is not completely “waived,” because renewal is not a

requirement under Rule 50. However, the motion must be

reviewed in light of all evidence presented during the trial,

because any evidence offered by the defendant may cure an

otherwise erroneous denial of his motion for judgment on the

evidence. Appellate review of the motion essentially becomes

review for sufficiency of the evidence.

Farmers Elevator Co. of Oakville v. Hamilton, 926 N.E.2d 68, 76 (Ind. Ct. App.

2010), trans. denied; see also Romero v. State, 124 N.E.3d 1287, 1290–91 (Ind. Ct.

App. 2019).

[14] The parties dispute whether LWG renewed its motions for a directed verdict at

the close of evidence. While the City claims that LWG made only a general

request for the trial court to enter judgment in its favor, LWG claims that it

effectively renewed its motions for a directed verdict, mentioning the issues

included in its motions for a directed verdict and specifically mentioning the

words “directed verdict.” While LWG, perhaps, could have been more specific

in its arguments to the trial court, counsel did attempt to renew LWG’s motions

for a directed verdict, arguing the same grounds as were argued in the motions

and referring to the motions themselves. As such, in reviewing whether the trial

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court abused its discretion in denying LWG’s motions for a directed verdict, we

limit our review to only the evidence presented during the City’s case-in-chief.

1. Adverse Domination

[15] “‘Adverse domination is an equitable doctrine that tolls statutes of limitations

for claims by corporations against its officers, directors, lawyers and

accountants for so long as the corporation is controlled by those acting against

its interests.’” City of Marion II, 169 N.E.3d at 390–91 (quoting Clark v. Milam,

192 W.Va. 398, 452 S.E.2d 714, 718 (1994)). “It ‘applies to causes of action

against the wrongdoing directors ... [and] against co-conspirators of the

wrongdoers.’” Id. at 391 (quoting Indep. Tr. Corp. v. Stewart Info. Servs. Corp.,

665 F.3d 930, 936 (7th Cir. 2012)) (brackets and ellipsis in original). The

doctrine of adverse domination was “founded on the presumption that those

who engage in fraudulent activity likely will make it difficult for others to

discover their misconduct.” Id. at 392.

[16] “Generally, a corporation ‘knows,’ or ‘discovers,’ what its

officers and directors know.” Clark, 452 S.E.2d at 718. “But

when officers and directors act against the interests of the

corporation, their knowledge, like that of any agent acting

adversely to his principal, is not imputed to the corporation.” Id.;

see also Am. Heritage Banco, Inc. v. McNaughton, 879 N.E.2d 1110,

1116 (Ind. Ct. App. 2008) (exception to the general rule of

imputed knowledge when an agent acts adversely to the

principal). A corporate plaintiff cannot “have ‘knowledge’ of an

injury to itself until those individuals who control it know of the

injury and are willing to act on that knowledge.” [Resol. Tr. Corp. v.

Farmer, 865 F. Supp. 1143, 1155 (E.D. Pa. 1994)] (emphasis

added). In other words, where an “entity is dominated by those

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whose own malfeasance might be revealed in the course of

litigating a complaint, it follows the entity has not ‘discovered’

the injury to its interests in any meaningful way.” [Resol. Tr.

Corp. v. O’Bear, Overholser, Smith & Huffer, 840 F. Supp. 1270,

1284 (N.D. Ind. 1993)]. The doctrine is based “on the theory

that it is impossible for the corporation to bring the action while

it is controlled, or ‘dominated,’ by culpable officers and

directors.” [F.D.I.C. v. Smith, 980 P.2d 141, 144 (Or. 1999)].

Wrongdoing officers and directors “cannot be expected to sue

themselves or to initiate any action contrary to their own

interests.” Id. Thus, the statute of limitations is tolled as long as

a corporate plaintiff is controlled by the alleged wrongdoers. Id.

Id. at 391.

[17] The Indiana Supreme Court has limited the application of the adverse-

domination doctrine to cases “in which intentional wrongdoing is involved” so

as not to “‘overthrow the statute of limitations completely in the corporate

context.” Id. at 392 (quoting F.D.I.C. v. Dawson, 4 F.3d 1303, 1312 (5th Cir.

1993)). The doctrine applies to both private and municipal corporations. Id. In

addition, “[i]t is well established that the doctrine also applies to causes of

action against co-conspirators of the wrongdoers who adversely dominate the

entity.” Id.

[18] In denying LWG’s motion for a directed verdict on adverse domination

grounds, the trial court found as follows:

To avoid a directed verdict on its adverse domination defense,

the City must have introduced evidence supporting a conclusion

that Mayor Seybold engaged in intentional wrongdoing, that

LWG was complicit in the wrongdoing, and that no one else had

the knowledge, capability and motivation to bring suit.

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The City’s evidence provides a basis for reasonable inferences

that: The Mayor formed a personal relationship with Michael

An, and thereafter directed $2.5 million of public money toward

An’s YMCA project without objectively establishing An’s

credentials as a developer. Members of the Mayor’s

administration who served at the pleasure of the Mayor

facilitated the financing of the $2.5 million. Disbursements of the

$2.5 million were made without An having to meet the

conditions precedent set out within the bond indenture. LWG

was complicit in this wrongdoing, in that Mr. Swintz sent an

email urging the First Farmers trustee to disburse funds to An,

although Mr. Swintz knew that An had not provided acceptable

proof of the additional $3 million he was required to commit

before being entitled to disbursement. An made payments to

Mayor Seybold for a campaign contribution, to pay the Mayor’s

life insurance premium, and to the Mayor’s wife. An also hired

the Mayor’s brother Chad to work on the YMCA project. When

KPMG was hired to investigate or audit the YMCA project,

Chad refused to turn over receipts of project expenditures, citing

a non-disclosure agreement with Mr. An. Mayor Seybold’s

administration did not insist on seeing the agreement to

determine if this claim was legitimate, did not seek relief from the

NDA from Mr. An, and did not ask the City Council to invoke

its subpoena power to obtain these records, pursuant to I.C. 36-4-

6-21.

The YMCA project was a significant commitment of public

money, and became a source of local controversy when the

public money was spent and the project not completed. If the

Mayor’s administration was serious about investigating the

project, there were easily available steps that were not taken. The

city administration took “no” as an answer from the Mayor’s

brother, and did little else to get to the bottom of the issue. This

evidence could be interpreted by a reasonable jury as proof that

the Mayor engaged in intentional wrongdoing, and this in turn

made it difficult or impossible for others at the City to discover

and act on evidence of this wrongdoing.

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LWG can defeat an otherwise proven claim of adverse

domination if it establishes another person or entity had the

ability, knowledge, and motivation to bring suit despite the

Mayor’s adverse domination, and failed to do so. [LWG]

identifies the Redevelopment Commission as that entity, citing

I.C. 36-7-14-12.2(11). That section does provide that the

Redevelopment Commission has the ability to bring suit in the

name of the City. This establishes that the Commission had the

ability to bring suit, but not that it also had the knowledge and

motivation to do so. Mr. Hunt’s testimony described that

economic development project presentations made to the City’s

deliberative bodies were typically brief oral presentations made

either by persons subject to the Mayor’s appointment/retention

authority, or by persons hired by these [persons]. A jury could

reasonably infer that if the Mayor did not want the deliberative

bodies to be aware of facts implicating the Mayor in wrongdoing,

that he would discourage members of his administration from

making these facts known to these bodies, including the

Redevelopment Commission. Without a showing of the bodies’

knowledge and motivation to bring suit, the mere statutory

capability is insufficient.

[The City’s] evidence would permit a reasonable jury to conclude

Mayor Seybold did adversely dominate the City during his term

in office. Through cross-examination and impeachment, LWG

has challenged many of the inferences in favor of [the City] listed

above, and the jury may ultimately not accept the City’s position

after all evidence for both sides has been brought forth. For

example, Chad Seybold testified that he was hired by Mr. An

solely through Chad’s own merit, over the strenuous objections

of his brother the Mayor. And Mr. Kleinrichert testified that Mr.

An had roughly $38,000 of his own, non-bond related funds in

his account from which he could have made the payments to the

Mayor and his Wife. The jury has the prerogative to reject Chad

Seybold’s self-serving statements that the Mayor was uninvolved

in his selection by Mr. An. Likewise, the jury could conclude

that Mr. An’s payments to the Seybolds from the account

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 17 of 35

receiving YMCA bond money were at least in some proportion

made from bond proceeds, as Mr. An was commingling his

personal funds with corporate assets in a non-businesslike

manner.

Appellant’s App. Vol. II pp. 79–81. LWG challenges the trial court’s

determination that the City presented sufficient evidence of both intentional

wrongdoing and domination by Mayor Seybold to survive its directed verdict

motions. Specifically, LWG asserts that “[a]t bottom, the trial court’s

conclusions with respect to intentional wrongdoing by the Mayor amount to

nothing more than unsupported innuendo” and “[s]imply put, the City failed to

adduce any evidence that Mayor Seybold did anything that could qualify as

intentional wrongdoing.” Appellant’s Br. pp. 34, 36.

a. Intentional Wrongdoing

[19] With regard to the trial court’s determination that the City’s evidence supported

a reasonable inference of intentional wrongdoing by Mayor Seybold, LWG

argues that “[e]ven assuming such inferences were properly drawn from the

sparse evidence adduced from the City’s five witnesses, they come nowhere

close to establishing intentional wrongdoing by Mayor Seybold.” Appellant’s Br.

p. 30 (emphasis in original). In support, LWG cites to the United States Court

of Appeals for the 5th Circuit’s decision in Dawson in which the Federal Deposit

Insurance Corporation (“FDIC”) sued certain individuals connected to a failed

bank, Texas Investment Bank, N.A. (“TIB”). 4 F.3d at 1305. The FDIC

alleged that Dawson, TIB’s former president, and other board members had

made a series of eighty-two unsafe and unsound loans between February of

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 18 of 35

1982 and October of 1984, which constituted unsafe and unsound banking

policies “that should have been detected and prevented by Dawson and the

other members of TIB’s board of directors.” Id. Some of the defendants moved

to dismiss the lawsuit, claiming that it was barred by the applicable statute of

limitations. Id. at 1306. For its part, the FDIC argued that the statute of

limitations did not apply because of the doctrine of adverse domination. Upon

review, the 5th Circuit concluded that

[t]he FDIC’s own evidence tended to show that most of TIB’s

directors may have been negligent in failing to supervise the

lending functions. Yet, at the same time, the board never

concealed its “serious deficiencies” from examination by the

OCC or anyone else. Even after the OCC notified TIB’s board of

its shortcomings in supervising TIB’s lending function, there is

no evidence to suggest that an organized majority coalesced to

prevent any other parties from discovering the problems.

4 F.3d at 1312. Thus, the 5th Circuit determined that the adverse-domination

theory was inappropriate as the evidence established mere negligence rather

than intentional wrongdoing. Id.

[20] LWG also cites to the 5th Circuit’s decision in Resolution Trust Corp. v. Acton, 49

F.3d 1086 (5th Cir. 1995) (“Acton I”). In Acton I, the defendants, who were

former directors of HeritageBanc Savings Association (“HeritageBanc”), were

alleged to have breached their fiduciary duties and committed gross negligence

with respect to their oversight duties for HeritageBanc. 49 F.3d at 1088–89.

Charles Acton, the chairman of the board and president of HeritageBanc

appointed his wife, two daughters, and father-in-law as officers of HeritageBanc

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 19 of 35

and/or one of its subsidiaries. Resol. Tr. Corp. v. Acton, 844 F. Supp. 307, 310–

11 (N.D. Tex. 1994) (“Acton II”). Acton’s two sons-in-law were also active in

bank operations. Id. at 311. In alleging adverse domination, the plaintiff

alleged that HeritageBanc had circumvented regulation by making “a number

of imprudent transactions.” Id. These allegedly imprudent transactions

included (1) the sale of land owned by HeritageBanc to a member of Acton’s

family for $0.64 per square foot only for the bank to repurchase the land four

months later at a rate of $6.50 per square foot, (2) 100% financing for the

purchase of land by a client from HeritageBanc and one of Acton’s family

members, and (3) make a series of loans to allegedly insolvent entities. Id.

Based on these transactions, Acton and the other board members were alleged

to be grossly negligent. On appeal, the 5th Circuit concluded that negligence,

even if gross in nature, “is not enough to toll limitations” under the doctrine of

adverse domination. Acton I, 49 F.3d at 1092.

[21] Finally, LWG cites to the United States District Court for the Northern District

of Texas’s decision in U.S. Bank National Ass’n v. Verizon Communications, Inc.,

2012 WL 3100778 (N.D. Tex. July 31, 2012), in which an independent board

that had allegedly been chosen by Verizon was alleged to have engaged in

adverse domination by engaging in allegedly tainted business dealings with

Verizon. The court concluded that the board members had not engaged in

intentional wrongdoing and, as such, the adverse-domination doctrine did not

apply to toll the statute of limitations. Verizon, 2012 WL 3100778 at *15.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 20 of 35

[22] LWG asserts that the acts involved in each of the three cited cases are arguably

worse than the alleged acts committed by Mayor Seybold, suggesting that

Mayor Seybold’s acts could not reasonably have been classified as intentional

wrongdoing. Specifically, LWG asserts that “[n]one of the evidence proffered

in the City’s case-in-chief demonstrated any conduct by Mayor Seybold as

egregious as the conduct shown in these decisions, all of which was held not to

meet the standard of intentional wrongdoing.” Appellant’s Br. pp. 32–33.

[23] Despite LWG’s assertion, with respect to the alleged intentional wrongdoing by

Mayor Seybold, the City’s case-in-chief contained evidence indicating that

Mayor Seybold had received improper financial benefits from An in the form of

cash payments to his wife and political campaign and premium payments on a

life insurance policy with these benefits being financed solely or at least in part

from bond proceeds. Specifically, the City presented evidence that showed that

An had made cash payments to Mayor Seybold’s wife and his political

campaign as well as had made premium payments on a life insurance policy

taken out for Mayor Seybold’s benefit. An issued a $1000.00 check made

payable to Mayor Seybold’s wife, Jennifer, from funds which, based on the

account the check came from, Kleinrichert testified “with 100 percent

certainty” came “from the bonds.” Tr. Vol. IV p. 138. Other payments came

from accounts in which An is alleged to have co-mingled personal and bond

funds, with “[b]etween 98 and 99 percent of the money” in those accounts

coming from bond proceeds. Tr. Vol. IV p. 110. An was listed as the

“premium payor” of the $792.48 annual premium on the life insurance policy

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 21 of 35

taken out for Mayor Seybold’s benefit. Appellee’s Addendum p. 37.

Kleinrichert further testified that he had seen no indication that either the life

insurance premiums or the $1000.00 payment to Jennifer Seybold had ever

been reimbursed by Mayor Seybold and that he had been able to “follow 100

percent of the bond money” to see where it had gone and how it had been

spent. Tr. Vol. IV p. 111. This evidence supports a finding, at the very least,

that the $1000.00 payment to Jennifer came from bond proceeds and, the jury

could reasonably infer that it was very probable that the other payments also

came from bond proceeds.

[24] The City also introduced evidence that An and Chad had failed to cooperate

with the initial investigation into use of bond funds that was conducted during

Mayor Seybold’s time in office, with Chad citing a non-disclosure agreement

with An. While the City does not cite to any evidence specifically indicating

that Mayor Seybold instructed An and Chad to refuse to cooperate with the

investigation, there is no evidence indicating that Mayor Seybold took any

action to ensure cooperation with the investigation by either his brother or An.

While this evidence itself falls short of establishing intentional wrongdoing by

Mayor Seybold, this evidence was not considered in isolation but together with

the other evidence relating to the alleged intentional wrongdoing by Mayor

Seybold.

[25] In denying LWG’s motion for a directed verdict, the trial court also cited

evidence indicating that disbursements of the $2.5 million bond proceeds were

made without An having to meet the conditions set out in the bond indenture.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 22 of 35

While An was initially required to submit proof of funding before bond

proceeds would be released by First Farmers, i.e., the bank through which bond

proceeds were released, the City introduced evidence that “Mayor Seybold, for

and on behalf of the City of Marion, waived the documentation requirements of

Section 4.3 of the Trust Indenture, and further instructed First Farmers to

cooperate and work through Chad Seybold.” Ex. Vol. 11 p. 36. The City

further provided evidence establishing that while a document referred to as the

Cho Memorandum claimed to provide proof that An had secured funding to

complete the YMCA project, “[a] competent financial advisor reading the [Cho

Memorandum] would recognize readily that it did not do so.” Tr. Vol. III p.

228. As it was, the Cho Memorandum was not disseminated to all relevant

City officials or to First Farmers.

[26] The trial court also cited evidence that Mayor Seybold did not objectively

establish An’s credentials as a developer before directing $2.5 million of public

money toward the YMCA project, with the City presenting the expert

testimony of Robert Doty, a financial advisor in the municipal bond market

who was hired to review the circumstances relating to the YMCA project.

Doty testified that (1) he had not “seen evidence that [An] had experience in

developing this type of project” and (2) An “didn’t approach the transaction in

the way that many developers would approach a bond finance transaction. He

didn’t have a lawyer who understood bond finance for development projects.

He didn’t have an accountant or didn’t have a bank advising him.” Tr. Vol. III

p. 240. In addition, An hired Mayor Seybold’s brother, Chad, to work as

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 23 of 35

project manager on the YMCA project despite the fact that Chad had not had

any experience building a boutique hotel “or anything like that.” Tr. Vol. III p.

15.

[27] The trial court considered all of the above-discussed evidence, which again was

presented during the City’s case-in-chief, and determined that a directed verdict

was improper because there was sufficient evidence to support a reasonable

inference of wrongdoing, or at least that would allow reasonable persons to

differ as to the result. See Purcell, 972 N.E.2d at 840. Upon review, we reach

the same conclusion as the trial court.

b. Domination

[28] In addition to proving intentional wrongdoing, the City was also required to

prove that Mayor Seybold had dominated the City. City of Marion II, 169

N.E.3d at 396. “An affirmative showing of domination would require a city to

show that its mayor was exercising its ability to supervise and control the City

Attorney, and others who could investigate the mayor’s own wrongdoing.” Id.

at 397.

[29] LWG asserts that the City failed to present sufficient evidence to defeat its

motion for a directed verdict on the question of whether Mayor Seybold had

dominated the City. LWG claims that “the City presented no evidence during

its case-in-chief that Mayor Seybold did anything to exercise domination over

the city attorney” or the City’s Redevelopment Commission, both of whom had

the authority to file suit on behalf of the City. Appellant’s Br. p. 39.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 24 of 35

[30] While the Redevelopment Commission may have had the statutory power to

file suit on behalf of the City, three of its five members were appointed by

Mayor Seybold and any or all of those three members could have been removed

by him without cause. See Ind. Code §§ 36-7-14-6.1(a) (“The five (5)

commissioners for a municipal redevelopment commission shall be appointed

as follows: (1) three (3) shall be appointed by the municipal executive.), 36-7-

14-9(a) (“The municipal executive … that appointed a municipal

redevelopment commissioner may summarily remove that commissioner from

office at any time.”). In addition, while LWG is correct that the

Redevelopment Commission has the power to “[i]nstitute or defend in the

name of the unit any civil action,” Indiana Code section 36-7-14-12.2(a)(11),

the statute does not explicitly grant the Redevelopment Commission the

statutory power to investigate alleged wrongdoing by the City’s executive. See

Ind. Code § 36-7-14-12.2.2 Further, given that the Redevelopment Commission

had not received either the Cho Memorandum or any information relating to

how the Bond proceeds had been spent, the a fact-finder could reasonably infer

that the Redevelopment Commission had not, during the relevant time period,

had any reason to believe that it was necessary to bring a lawsuit on the City’s

behalf.

2

Indiana Code section 36-7-14-12.2 was amended effective January 1, 2023. The current version of the

statute still does not appear to give the Redevelopment Commission the statutory power to investigate alleged

wrongdoing by the City’s executive.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 25 of 35

[31] In addition, Tom Hunt, who became corporate counsel for the City on

September 1, 2014, testified that neither he nor his predecessor could have filed

a lawsuit relating to the YMCA project without Mayor Seybold’s approval.

Specifically, Hunt testified that both he and his predecessor “served at the

pleasure of the mayor, took directions from the mayor, and did projects as the

mayor directed.” Tr. Vol. II p. 91. Hunt further testified that he was never

directed by Mayor Seybold “to look into whether the [C]ity had any legal rights

that it could enforce to require” An to complete the project. Tr. Vol. II p. 90.

[32] Furthermore, despite LWG’s claim to the contrary, the City’s case-in-chief

included evidence from which a reasonable fact-finder could infer that Mayor

Seybold had impeded the KPMG investigation. Again, the City’s evidence

established that neither Chad nor An had cooperated with the KPMG

investigation, with Chad claiming that he “was not able to because [he] was

under a non-disclosure agreement with [An].” Tr. Vol. III p. 106. The Indiana

Supreme Court discussed Chad’s actions and Mayor Seybold’s alleged control

over the KPMG investigation in City of Marion II, stating

Here, the KPMG investigation was initiated by Mayor Seybold’s

office. But it never came close to revealing any wrongdoing

because Mayor Seybold’s own brother refused to give KPMG the

receipts necessary to perform an investigation. And Mayor

Seybold never asked Chad to turn over the receipts, further

establishing a genuine issue of material fact as to Mayor

Seybold’s willingness to redress the City’s injures. The reasonable

inference to draw here is that Mayor Seybold would not allow an

investigation into the project, and his alleged wrongdoing, to succeed.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 26 of 35

169 N.E.3d at 394–95 (emphasis added). We agree with the Indiana Supreme

Court that Chad’s refusal to cooperate with the investigation together with

Mayor Seybold’s failure to request that Chad and An cooperate with the

investigation supports the reasonable inference that Mayor Seybold exerted

control over the investigation such that any wrongdoing on his behalf would

not be discovered.

[33] Further, although Hunt provided another city employee, who also served at the

pleasure of the mayor, a name of someone at KPMG, he did not hear anything

about what happened to the KPMG investigation until after Mayor Seybold

had left office. It seems unlikely that the City attorney, i.e., Hunt, would not

have had at least some knowledge of or been involved at some level in an

investigation into issues relating to city spending/funding. The trial court

found that “[a] jury could reasonably infer that if the Mayor did not want the

deliberative bodies to be aware of facts implicating [him] in wrongdoing, that he

would discourage members of his administration from making these facts

known to these bodies, including the Redevelopment Commission.”

Appellant’s App. Vol. II p. 81.3

[34] Upon review, like the trial court, we conclude that the evidence presented in the

City’s case-in-chief was such that reasonable persons could differ as to the

3

The City also argues that the tolling of the statute of limitations was warranted due to the doctrine of

fraudulent concealment. The trial court, however, did not base its ruling on this doctrine and we accordingly

limit our focus to the parties’ arguments relating to adverse domination.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 27 of 35

result. As such, we agree with the trial court’s determination that it would have

been improper for the trial court to have entered a directed verdict in favor of

LWG on the question of whether Mayor Seybold dominated the City during

the relevant time period. See Purcell, 972 N.E.2d at 840.

c. LWG’s Complicity

[35] The City also presented evidence of LWG’s complicity, mainly through the

actions of LWG employee Bob Swintz, who had acted as a financial advisor for

Mayor Seybold’s administration. Swintz was one of the few individuals who

had received the Cho Memorandum. Doty opined that Swintz should have

“delivered that document to the key decision makers, the financial decision

makers of the city, the Common Counsel, the city commissions, the Economic

Development Director, and the mayor” and “warned the city that the [Cho

Memorandum] was a red flag that funding was not available to complete the

project and that the city needed to take action to protect itself.” Tr. Vol. III p.

228. Hunt testified that the Economic Development Commission would not

have been able to find that the YMCA project would create a public benefit had

it known An did not have requisite funding. Specifically, Hunt testified that

if the Commission knew about it, it would have been difficult for

them to make the … finding that … a public benefit to the area to

be developed would result, because if … [An] didn’t have the

money to complete the project, then the project never got off the

ground and there would be no benefit. So if the Commission …

had been informed that the … developer was underfunded, then

they could not have made that … finding.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 28 of 35

Tr. Vol. II p. 81. It appears that, at the very least, Swintz was complicit in

keeping the Cho Memorandum from relevant city officials.

[36] In addition, Doty opined that Swintz had “acted against the city’s best interest”

in giving certain advice to Chad, which had enabled Chad “to circumvent, key

protections, important protections in the trust indenture for the city requiring

that reimbursement be made only for costs that had already been spent on the

project.” Tr. Vol. III p. 228. Doty further opined that in 2011, Swintz had

“voluntarily made an affirmative recommendation to the Common Counsel

that the 2009 bonds be refinanced” without forming a reasonable basis for that

recommendation or informing the Counsel that “the transaction created new

risks for the city.” Tr. Vol. III p. 229. The City also introduced various emails

which, at the very least, supported a reasonable inference that Swintz had been

aware of and had acted in a manner complicit with Mayor Seybold’s actions.

Swintz’s testimony indicated that he had made false, or at the very least

misleading, statements to First Farmers and KPMG during communications

regarding the bonds and the subsequent investigation into the use of the bond

funds. The above-stated evidence is sufficient to have rendered entry of a

directed verdict on the question of complicity improper. See Purcell, 972 N.E.2d

at 840. In sum, we conclude that the trial court did not abuse its discretion in

denying LWG’s motion for a directed verdict on the City’s claim of adverse

domination.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 29 of 35

2. LWG’s Liability

[37] LWG additionally contends that “[i]n addition to being time-barred, the City’s

claims against [LWG] are without merit.” Appellant’s Br. p. 42. Thus, LWG

asserts that the trial court erred in denying its motions for a directed verdict “on

both the negligence and fiduciary duty claims.” Appellant’s Br. p. 43 (emphasis

omitted). For its part, the City contends that the trial court did not abuse its

discretion as its case-in-chief contained sufficient evidence to survive LWG’s

motions for a directed verdict.

i. The City’s Negligence Claim

[38] With respect to the City’s negligence claim, LWG asserts that “the City

submitted no evidence as to what constitutes the applicable standard of care for

negligence as against [LWG].” Appellant’s Br. p. 43. LWG further asserts

because such evidence was necessary to prove the City’s negligence claim, the

trial court abused its discretion in denying LWG’s motion for a directed verdict.

[39] LWG points to Doty’s testimony, wherein he indicated that the negligence

standard of care and the fiduciary standard of care are different, with the

fiduciary standard of care being higher. LWG also points to Doty’s admission

on cross-examination that “[i]f you looked at [LWG’s] conduct from just the

standard of care applicable to negligence,” it is possible that there may not have

been a breach of the negligence standard. Tr. Vol. IV p. 21. Doty also testified,

however, regarding the ways he believed LWG, through Swintz, had breached

the relevant standards of care, outlining actions which he believed Swintz

should have taken in order to have acted as a competent financial advisor. The

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 30 of 35

evidence was sufficient to create a question for the jury as it could support a

reasonable inference in favor of the City. See Purcell, 972 N.E.2d at 840. The

trial court, therefore, did not abuse its discretion in denying LWG’s motion for

a directed verdict.

ii. The City’s Fiduciary-Duty Claim

[40] Statements relating to the standard of care given by competent fiduciaries were

spaced throughout Doty’s expert testimony. LWG acknowledged that Doty

had addressed the standard of care but claims that the trial court abused its

discretion in denying its motions for a directed verdict because Doty had

“merely assumed that [LWG] owed the City a fiduciary duty at the time the

2009 bond was issued.” Appellant’s Br. p. 45. LWG argues that its fiduciary

duty was not established until after the 2009 bonds were issued. Swintz’s

testimony at trial, however, seems to indicate otherwise.

[41] LWG alternatively argues that even if it had a fiduciary duty to the City prior to

the issuance of the bonds, Doty’s opinions do not support an inference that

LWG had breached said duty. Doty opined otherwise, testifying that he

believed that LWG had breached its duty in three ways. First,

Swintz received a very important document from Chad Seybold

intended for the city. I’ll refer to it as the [Cho Memorandum].

The [Cho] Memorandum claimed to provide proof that funding

was available to complete the YMCA project in the city. A

competent financial advisor reading the [Cho Memorandum]

would recognize readily that it did not do so. Mr. Swintz should

have delivered that document to the key decision makers, the

financial decision makers of the city, the Common Counsel, the

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 31 of 35

city commissions, the Economic Development Director, and the

mayor. In addition, he should have warned the city that the

[Cho Memorandum] was a red flag that funding was not

available to complete the project and that the city needed to take

action to protect itself.

Tr. Vol. III p. 227–28. Second,

Swintz voluntarily undertook to provide advice to Mr. Chad

Seybold, the local representative of the developer, an adverse

party to the city. In doing so, Mr. Swintz acted against the city’s

best interest. He advised Mr. Seybold that there was no problem

with submitting a reimbursement request the next day at the

bond closing of -- for monies that had not been expended on the

YMCA project. In doing so, Mr. Swintz’[s] advice to Mr.

Seybold allowed Mr. Seybold to circumvent, key protections,

important protections in the trust indenture for the city requiring

that reimbursement be made only for costs that had already been

spent on the project.

Tr. Vol. III p. 228. Third,

Swintz voluntarily made an affirmative recommendation to the

Common Counsel that the 2009 bonds be refinanced. In doing

so, Mr. Swintz failed to do his homework to form a reasonable

basis for that recommendation. In addition, Mr. Swintz failed to

make a presentation to the Common Counsel that was balanced

stating the pros and cons. He omitted to mention that the

transaction, even though he presented positive information, he

omitted to mention that the transaction created new risks for the

city.… Those specific new risks were that a mortgage on the

project and a personal guarantee by Mr. An, the developer,

would be eliminated.

Tr. Vol. III p. 229.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 32 of 35

[42] Doty gave specific examples of why he believed that LWG, through Swintz,

had violated its fiduciary duty. Again, the evidence was sufficient to create a

question for the jury as it could support a reasonable inference in favor of the

City. See Purcell, 972 N.E.2d at 840. The trial court, therefore, did not abuse its

discretion in denying LWG’s motion for a directed verdict.4

B. Whether the Damages Awarded by the Jury Are

Excessive

[43] Alternatively, LWG contends that “[a]t an absolute minimum, the jury’s award

of over $3 million based on [LWG’s] supposed deficiencies cannot possibly be

sustained.” Appellant’s Br. p. 50.

“Damages are particularly a jury determination.” Prange v.

Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied.

“No particular degree of mathematical certainty is required in

awarding damages.” Greives v. Greenwood, 550 N.E.2d 334, 339

(Ind. Ct. App. 1990). “We will not deem a verdict to be the

result of improper considerations, unless it cannot be explained

on any other reasonable ground.” Prange, 629 N.E.2d at 922.

“Our inability to look into the minds of jurors and determine

how they computed an award is, to a large extent, the reason

behind the rule that a verdict will be upheld if the award falls

within the bounds of the evidence.” Weinberger v. Boyer, 956

N.E.2d 1095, 1113 (Ind. Ct. App. 2011), trans. denied (2012).

“[I]f there is any evidence in the record which supports the

4

As the City points out in its brief, LWG did not include any argument relating to the City’s constructive-

fraud claim in its initial brief. Although LWG argues in its reply brief that the trial court abused its discretion

by denying its motions for a directed verdict as they related to the constructive-fraud claim, this argument is

waived as LWG had not challenged the trial court’s order in this regard in its initial brief. See Moriarty v.

Moriarty, 150 N.E.3d 616, 631 n.10 (Ind. Ct. App. 2020) (providing that an appellant may not raise new

arguments in its reply brief), trans. denied.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 33 of 35

amount of the award, even if it is variable or conflicting, the

award will not be disturbed.” Prange, 629 N.E.2d at 922.

Husainy v. Granite Mgmt., LLC, 132 N.E.3d 486, 493–94 (Ind. Ct. App. 2019).

Stated differently,

[t]he verdict will be reversed only when it is apparent from a

review of the evidence that the amount of damages awarded by

the jury is so small or so great as to clearly indicate that the jury

was motivated by prejudice, passion, partiality, corruption or that

it considered an improper element.

Dee v. Becker, 636 N.E.2d 176, 177 (Ind. Ct. App. 1994).

[44] The jury found that LWG was 95% at fault and awarded $3,121,624.00 in

damages against LWG. LWG claims that

[i]t is utterly implausible to put 95% of the blame for the entirety

of those damages on the accounting firm whose role was very

limited, given the wrongdoing of others, including the developer

and originator of the project, An, Chad, and many others. The

over $3 million award simply cannot be sustained as having been

caused exclusively by [LWG’s] actions.

Appellant’s Br. p. 51. LWG asserts that its allegedly limited role does not

support the “outrageous damages award made against it” and “[a]t a minimum,

the award should be vacated.” Appellant’s Br. p. 52.

[45] Although LWG claims that its involvement with the YMCA project and the

bond financing was limited, the jury found otherwise, concluding that LWG

had played an active role, or at least had been complicit, in the wrongdoing of

others. In addition to the evidence discussed above, which again was limited to

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 34 of 35

evidence that was presented during the City’s case-in-chief, additional evidence

was presented during trial that implicated LWG, or its representatives, as

having played an active role in the actions relating to the funding of the YMCA

project. LWG had owed a duty to the City, not Mayor Seybold. The jury

determined that LWG had breached that duty and, as a result, the City had

suffered damages. The jury’s award of damages was consistent with the

damages that it found the City had incurred in connection to the YMCA

project. As such, the jury’s award of damages was not excessive.

[46] The judgment of the trial court is affirmed.

Riley, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Opinion 22A-MI-2060 | October 10, 2023 Page 35 of 35