Mary R. Meuth, Individually and in her Capacity as Shareholder, Officer, and/or Director of Ubelhor Ridge, Inc. and Sharon D. Meuth, Individually and in her Capacity as Shareholder, Officer, and/or Director of Ubelhor Ridge, Inc., Appellants-Third-Party Defendants v. Daniel J. Ubelhor, Trustee of the Daniel J. Ubelhor Revocable Trust, Steven A. Ubelhor, Jeffrey G. Ubelhor, Trustee of The Jeffrey G. Ubelhor Revocable Trust, Kevin M. Ubelhor, Trustee of the Kevin M. Ubelhor Revocable Trust, and Eric Joseph Spalding, Appellees-Third-Party Plaintiffs (2025)

MEMORANDUM DECISION

[1] Mary R. Meuth (“Mary”) and Sharon D. Meuth (“Sharon”) (collectively, “the Sisters”) appeal following a bench trial, claiming the trial court erred in finding them liable in their individual capacities for actions taken as officers of Ubelhor Ridge, Inc. (“the Corporation”), a closely held family corporation. The litigation revolved around actions the Sisters took in connection with shares at one point held by their nephews (“the Shares”)—Daniel J. Ubelhor (“Daniel”), Steven A. Ubelhor (“Steven”), Jeffrey G. Ubelhor (“Jeffrey”), and Kevin M. Ubelhor (“Kevin”) (collectively, “the Brothers”)¹ —that were later transferred to another family member, Eric Spalding (“Spalding”). The Sisters claim the trial court clearly erred in finding them liable on all claims, resulting in damages in excess of $168,000.00, because the claims were either time-barred or lacking support in the facts, with there being no viable claim for relief under the Crime Victims Relief Act (“the CVRA”). Agreeing with the Sisters, we reverse.

Facts and Procedural History

[2] The Corporation is an Indiana corporation formed in 1997 by, Joseph I. Ubelhor (“Joseph”) and Roberta M. Ubelhor (“Roberta”), husband and wife, who initially held all 1,000 shares of common stock. In 1998, the Corporation adopted bylaws (“the Bylaws”) establishing a five-person Board of Directors that initially consisted of Joseph and Roberta's children: Kenneth J. Ubelhor (“Kenneth”), Joanne R. Haas (“Joanne”), Donna M. Rodgers (“Donna”), and the Sisters. Following Joseph's and Roberta's deaths, each of their children held 200 shares. When Kenneth died, Daniel replaced him on the board. The instant litigation concerns Kenneth's shares, which were divided among the Brothers, with each receiving fifty shares. At all pertinent times, the Sisters were not only shareholders, but also officers and directors of the Corporation.

[3] On January 28, 2013, the Brothers notified the Corporation of their desire to sell the Shares. The Bylaws gave the Corporation a ten-day right to purchase the Shares at “book value ․ as determined by the accountant of the Corporation,” with the requirement that “[t]he funds on deposit in the Endowment Fund ․ not be considered in determining book value[.]” Ex. Vol. IV p. 95. The board convened for a special meeting on February 8, 2013. Ahead of the special meeting, the Corporation's accountant was asked to determine the book value of the Corporation. The Sisters learned the Corporation's accountant calculated the book value of the Corporation to be $151,620.00, which equated to $30,324.00 for the 200 Shares owned by the Brothers, i.e., the Shares (“the Accountant's Book Value”). The Accountant's Book Value included the value of a rental home. Daniel did not attend the special meeting, where there was discussion between the Sisters and Joanne about whether the rental home should be treated as part of the Endowment Fund and, therefore, excluded from the valuation.² The Sisters and Joanne, constituting a majority of the board, concluded that the rental home was part of the Endowment Fund and should be excluded in calculating the Corporation's book value, and that the value of the Shares was $15,284.40, rather than $30,324.00. The three signed an offer letter (“the Offer Letter”) wherein they quoted the Bylaws, stated that the Corporation wished to purchase the Shares, and said: “According to the book value, your share is [sic] $15,284.40.” Id. at 114. Daniel received the Offer Letter that evening. The Offer Letter did not disclose the Accountant's Book Value, nor did the Sisters tell the Brothers about the discrepancy in book value.

[4] Around this time, Daniel was leading the Brothers’ dealings related to the Shares, serving as “the figurehead” and the person who “headed up” matters concerning “the offer to sell or those types of things.” Tr. Vol. 2 p. 29. Within three days of receiving the Offer Letter, Daniel contacted the Corporation's accountant and learned the Accountant's Book Value, which was substantially more than the value set forth in the Offer Letter. Id. at 21, 51. On February 26, 2013—after Daniel had learned of the discrepancy in book value—the Brothers executed a transfer agreement (“the Transfer Agreement”) in which they purported to transfer their ownership of the Shares to Spalding, who was also a lineal descendant of Joseph and Roberta. The Transfer Agreement stated that the transaction was “as a gift and for no consideration[.]” Ex. Vol. IV p. 11. The Brothers presented the Transfer Agreement to the Corporation, which refused to recognize the stock transfer to Spalding. At all pertinent times, the Corporation's records continued to reflect that the Brothers owned the Shares.

[5] At some point in 2015, the Corporation sought a legal opinion from its attorney about the legal status of the Shares. In a letter dated June 30, 2015, legal counsel opined that the attempted transfer was ineffective and the Shares “continue[d] to be held by [the Brothers].” Id. at 130.³ Counsel reasoned that the Bylaws provided “no exception ․ for making a transfer by way of a gift, an inheritance, or otherwise, without the necessity of offering the shares back to the Corporation.” Id. Counsel further opined that, because the Bylaws “provide[d] that shares cannot be transferred except on the books of the Corporation and then only if done in compliance with any restrictions on transfer,” the attempted transfer, “in contravention of the restrictions set forth in the Bylaws, [was] voidable at the insistence of the Corporation.” Id. Around this time, Sharon contacted the Corporation's accountant regarding the tax implications of including the rental home in the Endowment Fund. The accountant responded that the Corporation had not yet established the Endowment Fund, explaining: “[F]or there it [sic] be an actual endowment fund, there would need to be a charitable intent and the endowment would have to be in a charitable organization, which it is not currently.” Id. at 121.

[6] No further action was taken on the matter until February 21, 2019, when the Corporation filed a declaratory judgment action (“the Declaratory Action”) and named the Brothers and Spalding as defendants. The Sisters—in their official capacities—authorized the Corporation to file the Declaratory Action. When the Corporation filed the Declaratory Action, the Sisters had not disclosed to the Brothers and Spalding the Accountant's Book Value or the fact that they rejected the Accountant's Book Value and instead communicated a lower figure in the Offer Letter by treating the rental home as part of the Endowment Fund, which had not yet been formally established. The Sisters also had not disclosed the opinion of legal counsel regarding the status of the Shares, nor had they disclosed the opinion of the accountant, which indicated that the Accountant's Book Value—rather than the value in the Offer Letter—was the value consistent with the Bylaws. In seeking relief, the Corporation alleged that it “remains the position of the Corporation that [the Brothers] are obligated to sell [the Shares] back to the Corporation at book value, pursuant to ․ [the] Bylaws.” Ex. Vol. IV p. 138. Regarding the book value, the complaint referred only to $15,284.40, without explanation of how that value was determined.

[7] On July 5, 2019—more than six years after the Brothers attempted to transfer the Shares to Spalding—the Brothers and Spalding filed a third-party complaint (“the Third-Party Complaint”) against the Sisters, identifying the following nine counts: (1) breach of fiduciary duties; (2) violation of Indiana Code section 23-1-35-1, which concerns the corporate duties of a director; (3) criminal deception; (4) actual fraud; (5) criminal conversion; (6) criminal theft; (7) constructive fraud; (8) breach of contract; and (9) violation of Indiana Code section 23-1-52-2, which concerns the right of a shareholder to inspect corporate records.⁴ Appellant's App. Vol. 2 pp. 40–45. The Sisters filed their Answer in July 2020 wherein they alleged that all of the third-party claims were time-barred.  ⁵ Third Party Defendants’ Answer to Third Party Complaint at 20, Odyssey.

[8] The trial court first resolved the Corporation's Declaratory Action, holding a bench trial in October 2021. In January 2022, the court issued a written order wherein it found the Brothers successfully transferred the Shares to Spalding through the Transfer Agreement. The court ordered that the Corporation's records reflect that, effective February 26, 2013, Spalding was the owner of the Shares. As to the pending Third-Party Complaint, the Sisters moved for summary judgment in October 2022, arguing the claims were time-barred. The trial court held a hearing and denied the Sisters’ motion without explanation. The matter progressed to a bench trial, with the Brothers and Spalding seeking special findings under Trial Rule 52(A). The trial court took the matter under advisement, and the Brothers and Spalding submitted proposed findings and conclusions. On July 21, 2023, the court entered its written judgment, which was a near verbatim reproduction of the Brothers and Spalding's proposed findings and conclusions. The court found the Sisters liable on all claims.

[9] The judgment appeared to premise liability on the Sisters’ role in authorizing the Corporation to file the Declaratory Action, with the trial court identifying a series of “Material Misrepresentations and Omissions” related to authorizing that action. Appellant's App. Vol. 2 pp. 84–86. That is, the trial court found:

[The Sisters] authorized the filing of the Declaratory [Action] despite knowing and based upon:

a. Refusing to permit the transfer of the ․ Shares to [Spalding] despite previously approving other transfers of shares of the Corporation to non-lineal descendants—for no consideration—without requiring the same to be first offered to the Corporation, including (i) The transfer of Kenneth's shares to the [Brothers], (ii) The transfer of [Joanne's] shares to [certain individuals]; and (iii) The transfer of [Donna's] shares to her trust;

b. Their failure to abide by the notice provisions in the Bylaws when providing notice for the February 8 Special Meeting to the [Brothers], which preceded the Offer Letter;

c. The Offer Letter, signed by [the Sisters], contained material false statements that [the Sisters] knew the same to be false and intentionally omitting material facts, including that:

(i) The “Book value” in the Offer Letter was less than the Corporation Accountant's [B]ook [V]alue, despite [the Sisters] knowing that (1) the Bylaws specifically provided that the book value was to be “determined by the accountant of the Corporation,” (2) the Corporation had never established an Endowment Fund, pursuant to the Bylaws, and (3) the Bylaws provided that the book value may only be reduced by the funds on deposit for any Endowment Fund, not the value of the Rental Home; and

(ii) [The Sisters] intentionally quoted Section 1.02 of the Bylaws and underlined the term “Book value” to deceive the [Brothers] into believing that the “Book value” was actually the Accountant's Book Value.

(d) [The Sisters] had never disclosed to the [Brothers] that:

(i) The “Book value” in the Offer Letter had been created by [the Sisters] by reducing the Accountant's Book Value by the value of the Rental Home;

(ii) The Corporation Accountant determined the book value and provided it to [the Sisters];

(iii) [The Sisters] knew the Corporation Accountant's opinion that the Rental Home could not be [in] an endowment fund;

(iv) The Corporation Accountant never provided an opinion that the “Book value” in the Offer Letter could be determined by Mary and/or Sharon and by reducing the Accountant's Book Value by the value of the Rental Home;

(v) The Corporation Attorney provided an opinion in the Corporation Attorney Letter that (1) the ․ Shares remained with the [Brothers] and (2) prior transfers of shares by the Corporation that were authorized by [the Sisters] were improper and contrary to the Bylaws;

(vi) That prior to filing the Declaratory [Action], the Corporation Attorney never provided an opinion that the [Brothers] were obligated to sell the ․ Shares back to the Corporation;

(vii) They intentionally breached the Rental Home Agreement by not distributing funds from the Rental Home to the shareholders in order to fund the legal action against the [Brothers], including the filing of the Declaratory [Action]; and

(viii) They knowingly and surreptitiously authorized the payment of $5,000.00 each year to the Corporation Attorney to stay below the threshold in the Bylaws that would have required [the Sisters] to seek permission from the shareholders, including the [Brothers].

Id. at 84–86. The trial court collectively referred to the foregoing conduct as “Material Misrepresentations and Omissions.” Id. at 86. The court also found:

[The Sisters] authorized the filing of the Declaratory [Action] and made [the] Material Misrepresentations and Omissions [to] have the Corporation acquire and pay for the ․ Shares at a lower price than the Accountant's Book Value, so that [the Sisters’] respective ownership percentage in the Corporation would increase from 20% to 25%[,] and to prevent [Spalding] from obtaining the ․ Shares.

․ As the result of [the Sisters’] Material Misrepresentations and Omissions and authorizing the filing of the Declaratory [Action] to obtain an increase in ownership percentage of the Corporation, the ․ [Brothers and Spalding] were harmed. From 2013 through January 18, 2022, [the Sisters’] actions resulted in the ․ Shares being held hostage by [the Sisters]. The [Brothers] lost the opportunity to sell their shares at the [Accountant's Book Value]. The [Brothers] were also forced to incur attorney[s’] fees and legal costs to defend the Declaratory [Action].

Id. at 86–87.

[10] As to Counts I and II of the Third-Party Complaint, which alleged breach of fiduciary duties and statutory duties, the trial court found that the Sisters “breached their fiduciary duties owed to the ․ Brothers” by authorizing the action, and that the conduct “constituted willful misconduct or recklessness” and resulted in a breach of corporate duties owed under Indiana Code section 23-1-35-1. Id. at 88. The trial court determined that the Brothers and Spalding were harmed by the Sisters’ “attempts to take” the Shares and by “incurring attorneys’ [fees] in defending against” the Declaratory Action. Id.

[11] As to Counts V and VI—which sought relief under the CVRA by alleging liability for the criminal property offenses of theft and conversion—the trial court found that “authorizing the filing of the [Declaratory Action] in 2019 constituted theft and conversion.” Id. at 90. The court noted that, although the Corporation's records reflected that the Shares “constituted property of the ․ Brothers,” the Shares “should have been the property of [Spalding]” as determined in the Declaratory Action. Id. The trial court further found that the Sisters were not “authorize[d] ․ to control [the Shares] by not effectuating the transfer,” and that the Sisters initiated the Declaratory Action “to take [the Shares] away from the [Brothers and Spalding] in order to increase [their] respective ownership percentages[.]” Id. Similarly, in Counts III, IV, and VII—which alleged deception, fraud, and constructive fraud—the trial court found that the Declaratory Action was designed “to obtain the ․ Shares” and “was the result of and based upon false or misleading statements[.]” Id. at 89. The trial court further found that the Sisters’ actions harmed the Brothers and Spalding because the Brothers and Spalding incurred attorneys’ fees in defending against the Declaratory Action. The trial court further determined it was necessary to incur those attorneys’ fees to resist the Sisters’ wrongful “attempts to take the ․ Shares.” Id. at 90.

[12] Turning to Count VIII, which alleged breach of contract, the trial court concluded that the Sisters breached the Bylaws by “failing to permit the transfer of [the Shares] to Spalding,” causing harm through the attorneys’ fees incurred in defending against the Declaratory Action. Id. at 90–91. Finally, as to Count IX regarding a shareholder's right to inspect corporate records, the trial court determined the Sisters were liable because they failed to provide (a) accounting records and (b) counsel's letter regarding the status of the Shares. Id. at 91.

[13] In February 2024, the trial court held a hearing on damages, ahead of which the Brothers and Spalding filed a timely written request for special findings under Trial Rule 52(A). The Brothers and Spalding later filed their proposed findings and conclusions. On March 22, 2024, the trial court entered its written judgment on damages, which was a near verbatim reproduction of the Brothers and Spalding's proposed findings and conclusions. The trial court found the Sisters jointly and severally liable for $30,324.00 for the value of the Shares. The court further found that, because the Sisters committed certain property offenses under the Indiana criminal code and the Brothers and Spalding experienced pecuniary losses as a result of that criminal conduct, the Brothers and Spalding were entitled to relief under the CVRA. Pursuant to the CVRA, the trial court imposed treble damages, resulting in an additional $60,648.00 in damages related to the Shares. The trial court also awarded (a) $71,390.25 in attorneys’ fees under the CVRA, (b) $2,454.56 in costs and expenses, (c) $4,000.00 in total compensation for time used to attend court proceedings, (d) all reasonable costs of collection, and (e) attorneys’ fees and costs associated with successful appellate proceedings. Exclusive of appellate matters, the damages award ultimately exceeded $168,000.00. The Sisters now appeal.

Discussion and Decision

I. Standard of Review

[14] Where, as here, the trial court provided written findings pursuant to a party's timely written request, we will not set aside the findings or judgment unless clearly erroneous and must give “due regard” to the “opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A); see also Bruder v. Seneca Mortg. Servs., LLC, 188 N.E.3d 469, 471 (Ind. 2022). Our role is to examine “whether the evidence supports the findings and, if so, whether the findings support the judgment.” Town of Linden v. Birge, 204 N.E.3d 229, 233 (Ind. 2023). In conducting our review, we defer to the trial court's findings of fact, but review its legal conclusions de novo. Id. at 234. “The court's ultimate judgment—who wins on which counts or claims, and who loses—must follow from the conclusions of law and is clearly erroneous if the court applied the ‘wrong legal standard to properly found facts.’ ” Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d 597, 601 (Ind. 2019) (quoting Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016)). Furthermore, to the extent the findings and conclusions consist of a “near verbatim reproduction[ ]” of one party's proposed findings and conclusions, our standard of review does not change, but we remain mindful that this type of judgment “may appropriately justify cautious appellate scrutiny.” See Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002), cert. denied.

II. Claims Premised on Abusive Litigation Practices

[15] We begin by addressing the Sisters’ contention that the trial court erred in finding them liable under the CVRA for authorizing the Declaratory Action. The CVRA contemplates the recovery of “pecuniary loss[es]” from defendants who committed specified criminal offenses. See generally Ind. Code § 34-24-3-1. The Sisters claim that, as a matter of public policy, they cannot be liable for helping the Corporation pursue a judicial remedy; they suggest that finding them liable would have a chilling effect in that it would deter legitimate uses of the judicial system. See Appellant's Br. p. 18 (“To uphold such a result would punish litigants ․ us[ing] declaratory judgment actions to peacefully resolve disputes regarding property ownership and a party's legal rights.”). The Sisters narrowly focus on the imposition of liability under the CVRA—which led to treble damages and the authorization of other types of damages not typically recoverable in a civil action, see I.C. § 34-24-3-1—but their position points to a broader issue in the judgment, which appeared to premise all forms of liability on the Sisters’ role in authorizing the Declaratory Action. See Appellant's App. Vol. 2 pp. 84–86 (finding the Sisters “authorized the filing of the Declaratory [Action] despite knowing and based upon” their prior wrongful conduct, which the trial court collectively identified as the Sisters’ “Material Misrepresentations and Omissions”).⁶ We therefore proceed to determine whether the Brothers and Spalding demonstrated they were entitled to relief under the CVRA, or whether their claims are more properly considered claims for abusive litigation practices.

[16] Our common law has developed two tort claims specifically designed to address abusive litigation practices. These torts—known as “abuse of process” and “malicious prosecution”—account for the potential chilling effect on legitimate litigation. That is, a claim of abuse of process requires inquiry into “whether the legal steps were procedurally and substantively proper under the circumstances.” City of New Haven v. Reichhart, 748 N.E.2d 374, 379 (Ind. 2001). Similarly, a claim of malicious prosecution requires inquiry into whether “a reasonably intelligent and prudent person would be induced to act” the way the defendant did with respect to the complained-of litigation processes. Id. (quoting Maynard v. 84 Lumber Co., 657 N.E.2d 406, 409 (Ind. Ct. App. 1995)). Here, the Brothers and Spalding did not bring claims of abuse of process or malicious prosecution, nor did the trial court premise liability on any theory that would require an objective appraisal of the judicial processes involved. Instead, the Sisters’ role in authorizing the Declaratory Action was considered only with reference to the Sisters’ underlying motivations—with no evaluation of whether the Corporation objectively or subjectively benefitted from determining the lawful owner of the Shares. Absent objective analysis of the litigation, liability cannot be premised upon the filing or prosecution of the Declaratory Action.

[17] Because (a) the Brothers and Spalding did not bring any claims based upon abusive litigation practices and (b) the trial court did not find the Sisters liable on any theory that involved some form of safeguard to avoid chilling of bona fide litigation, we conclude that the trial court erred in premising liability on the Sisters’ role in authorizing the Corporation to file the Declaratory Action.⁷ Having resolved the litigation-based claims, we turn to claims based on other conduct, namely, the “Material Misrepresentations and Omissions” that took place years before the Corporation instituted the Declaratory Action. Cf., e.g., Appellant's App. Vol. 2 p. 87 (finding harm to the Brothers and Spalding “[a]s the result of [the Sisters’] Material Misrepresentations and Omissions and [their] authoriz[ation of] the filing of the Declaratory [Action]” (emphasis added)).

III. Statutes of Limitations

[18] The judgment substantially focused on the Sisters’ role in authorizing the Declaratory Action. See id. at 83–94. To the extent the judgment encompassed other theories of liability, we turn to the Sisters’ contention that the claims were time-barred because they were filed outside the applicable statutes of limitations. A statute of limitations defense is an affirmative defense that must be properly pleaded. T.R. 8(C). A party pleading this affirmative defense “bears the burden of proving the suit was commenced beyond the statutory time allowed.” In re Paternity of K.H., 709 N.E.2d 1033, 1035 (Ind. Ct. App. 1999). “[A] party who relies on facts in avoidance of a statute of limitations has the burden of proving those facts.” Id.

[19] As our Supreme Court has explained, “a cause of action accrues, and the limitation period begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). Determining “when a cause of action accrues is generally a question of law.” Id. Moreover, “[f]or an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred.” Id.

[20] Here, the trial court identified a series of “Material Misrepresentations and Omissions.” At times, the trial court focused on the relationship between the “Material Misrepresentations and Omissions” and the Sisters’ role in authorizing the Declaratory Action in 2019. Independent of the Declaratory Action, the Material Misrepresentations and Omissions took place between 2013 and 2019. The Sisters’ conduct generally related to the discrepancy in the book value, including the Sisters’ failure to disclose information bearing on that discrepancy. The Third-Party Complaint ultimately identified nine claims, which were: (1) breach of fiduciary duties; (2) violation of Indiana Code section 23-1-35-1, which concerns the corporate duties of a director; (3) deception; (4) actual fraud; (5) criminal conversion; (6) criminal theft; (7) constructive fraud; (8) breach of contract for violating the Bylaws; and (9) violation of Indiana Code section 23-1-52-2, which concerns a shareholder's right to inspect corporate records. Appellant's App. Vol. 2 pp. 40–45. Putting aside claims brought under the CVRA, which we have already addressed, there appears to be no dispute that the Brothers and Spalding had (1) at least ten years to bring a claim of breach of the Bylaws, see I.C. § 34-11-2-11, and (2) six years—at most—to bring any other claim, cf. I.C. § 34-11-2-7 (six years for fraud and constructive fraud).

[21] As to these remaining claims, all allegations turned on there at one point being a formal relationship between the Brothers and the Sisters—or Spalding and the Sisters—that stemmed from roles as shareholders, officers, or directors of the Corporation. When the trial court resolved the Declaratory Action, it found the Transfer Agreement effective, thus severing the Brothers’ formal relationship to the Corporation and, thereby, the Brothers’ formal relationship to the Sisters. As of February 26, 2013, the Brothers were no longer shareholders of the Corporation, had no enforceable rights under the Bylaws, and were no longer owed duties arising from their shareholder status. Cf. Reply Br. p. 5 (“It is inexplicable how the [t]rial [c]ourt determined that the [Brothers] were owed fiduciary duties after February 26, 2013, while also maintaining that the [Brothers] were not the owners of [the Shares] at the time.”). Instead, from the date of February 26, 2013, and from that point forward, only Spalding held the rights and benefits of a shareholder. Therefore, when it comes to applying the relevant limitations periods, Spalding's claims require separate analysis, and we focus the remainder of this section on the Brothers’ claims.⁸

[22] Turning to the pertinent timeline—i.e., events that took place on or before February 26, 2013, when the Brothers still owned the Shares—the Sisters’ “Material Misrepresentations and Omissions” consisted of the Sisters’ decision to pass off their “book value” as the book value required by the Bylaws, without disclosure of the Accountant's Book Value or the rationale behind the value communicated in the Offer Letter.⁹ It is essential to note that Daniel—who “headed up” dealings as to the Shares—obtained the Accountant's Book Value before the Brothers executed the Transfer Agreement. Tr. Vol. 2 p. 29. The record ultimately establishes that Daniel was serving as the Brothers’ agent with regard to the Shares—and under principles of agency law, his knowledge of the Accountant's Book Value was imputed to the Brothers. E.g., BGC Ent., Inc. v. Buchanan ex rel. Buchanan, 41 N.E.3d 692, 701–02 (Ind. Ct. App. 2015), trans. denied. In light of Daniel's knowledge, no later than February 26, 2013, the Brothers knew or should have known of a potential injury related to the discrepancy in the book value. At that point, the Brothers’ causes of action accrued, starting the clock on the applicable statutes of limitations. As to the statutes of limitations, we have caselaw recognizing that, when a defendant fraudulently concealed their wrongful conduct, the statute of limitations may be tolled. E.g., Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 690 (Ind. Ct. App. 2006). To the extent the judgment reflects a theory of equitable tolling, we note that equitable tolling applies only if the defendant “prevent[ed] the plaintiff from obtaining the knowledge necessary to pursue a claim,” which was not the case here. Id.

[23] Thus, putting aside the Brothers’ claim of breach of contract, if we were to assume that all of the Brothers’ other claims involved a six-year statute of limitations—i.e., the statutory period applicable to claims of fraud—the claims were time-barred because the Brothers’ causes of action accrued in February 2013, but they did not bring their claims until July 2019, more than six years later. We therefore conclude that, except for the claim alleging breach of the Bylaws (which involves a ten-year statute of limitations), the trial court erred in rejecting the Sisters’ affirmative defense that the viable claims were time-barred.

IV. Damages

[24] We turn now to (1) the Brothers’ claim of breach of contract and (2) all claims asserted by Spalding other than those brought under the CVRA.¹⁰ In general, damages constitute an essential element of a claim, whether tort or contract. E.g., Elpers Bros. Constr. & Supply, Inc. v. Smith, 230 N.E.3d 920, 931 (Ind. Ct. App. 2024) (reciting elements of fraud, where the plaintiff must establish conduct that “proximately caused the injury or damage of which the plaintiff complains”); Duncan v. Greater Brownsburg Chamber of Com., Inc., 967 N.E.2d 55, 57 (Ind. Ct. App. 2012) (explaining that, to recover for breach of contract, the plaintiff must prove “damage as a result of the defendant's breach” (quoting Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App. 2007)), trans. denied.

[25] On appeal, the Sisters argue that the Brothers failed to establish contract damages independent of the Brothers’ non-viable theories under the CVRA. See Appellant's Br. pp. 19–23 (arguing that the CVRA was “the method by which [the Brothers] asked the trial court to award [them] attorney fees as damages,” and that “damages caused by ․ breach of contract ․ must be something other than attorney fees.”). In responsive briefing, the Brothers did not address how contract principles would support the damages awarded if their CVRA claims fail. See, e.g., Appellees’ Br. pp. 26–30. Instead, the Brothers focused almost exclusively on defending their claim to damages under the CVRA. Indeed, in response to the Sisters’ specific challenge to contract damages, the Brothers referred to a “pecuniary loss” under the CVRA and directed us to caselaw regarding the proper measure of damages for conversion. Id. at 27 (“The measure of damages allowable in conversion is generally the fair market value of converted property at the time of conversion.” (quoting Willis v. Dilden Brothers, Inc., 184 N.E.3d 1167, 1182 (Ind. Ct. App. 2002), trans. denied)). When an appellant presents a prima facie case of error and the appellee fails to develop a response to the issue, reversal may be warranted. See, e.g., Nat'l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind. Ct. App. 1999) (“The failure to respond to an issue raised by the appellant is akin to the failure to file a brief.”). The “prima facie error rule” protects the court on appeal by eliminating “the burden of controverting arguments advanced for reversal, a duty which remains with the appellee.” Geico Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014). Of course, “we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Id. Furthermore, if the appellant ultimately failed to establish prima facie error, we will affirm. Id.

[26] As of February 26, 2013, the Brothers were deemed to know about the discrepancy in book value. Rather than pursue a claim or seek to compel the Corporation to purchase the Shares as set forth in the Bylaws, the Brothers did not respond to the Offer Letter and instead elected to transfer the Shares to Spalding for no consideration. Here, the Bylaws did not specify a shareholder's remedy for breach. Cf. Ex. Vol. IV pp. 95–112. With regard to common law contract damages, the Brothers have declined to explain how contract law afforded a remedy for damages or what measure of damages would apply under traditional contract principles, instead focusing on remedies they sought under the CVRA. See, e.g., Appellees’ Br. pp. 26–30. Indeed, the Brothers largely focused on the CVRA and how it authorizes compensation for pecuniary losses, including attorneys’ fees. See id. But, as earlier discussed, we have agreed with the Sisters that the Brothers did not assert a viable claim under the CVRA. The Brothers did not address this possibility, declining to argue in the alternative that a proper basis existed, independent of the CVRA, for contract damages. Furthermore, to the extent the Brothers sought compensation for attorneys’ fees incurred in connection with the Declaratory Action, the Brothers failed to establish that their ongoing participation in that action—where their position was that, as of February 26, 2013, they no longer owned the Shares—was a natural consequence of a breach of the Bylaws prior to February 26, 2013. Cf. Otter Creek Trading Co., Inc. v. PCM Enviro PTY, LTD, 60 N.E.3d 217, 229 (Ind. Ct. App. 2016) (“The damages claimed ․ must be the natural, foreseeable, and proximate consequence of the breach.”), trans. denied. Based on the foregoing, we conclude the Sisters established prima facie error with regard to the contract claim. In short, damages constitute an essential element of a contract claim, the Brothers ultimately declined to address the issue of contract damages independent of the CVRA, and we will not undertake the burden of developing arguments on the Brothers’ behalf. We therefore reverse the determination the Sisters were liable to the Brothers for a breach of the Bylaws.

[27] Turning to Spalding, the record establishes that he paid nothing for the Shares, the Declaratory Action was resolved favorably to him, and he did not pursue a claim to recover attorneys’ fees for his defense in the Declaratory Action, such as making a statutory request for fee-shifting due to frivolous litigation. See I.C. § 34-52-1-1. Under the circumstances, Spalding has no cognizable damages, as he cannot establish this essential element independent of the CVRA framework.

[28] All in all, to the extent (a) the trial court premised liability on any conduct other than the Sisters’ role in authorizing the Declaratory Action and (b) those claims were not time-barred, we conclude that all remaining claims necessarily fail because the Brothers and Spalding did not establish a legal basis for the damages awarded by the trial court.¹¹

Conclusion

[29] The trial court erred in determining the Sisters were liable to the Brothers and Spalding under the CVRA for authorizing the Declaratory Action. As to any other theory identified in the findings and conclusions, the Brothers’ and Spalding's claims fail as either time-barred or lacking with regard to damages in that the Brothers failed to establish a basis for contract damages independent of their theory under the CVRA and Spalding did not establish damages. We therefore reverse the judgment and damages award entered against the Sisters.

[30] Reversed.

FOOTNOTES

1.   While Steven personally held the Shares, Daniel, Jeffrey, and Kevin held the Shares in personal trusts. At times herein, we use the phrase “the Brothers” to collectively refer to Steven and the three trusts.

2.   It is unclear whether Donna—the fifth board member at that time—also attended the special meeting.

3.   The letter contained a detailed recitation of the relevant facts, but did not mention the discrepancy between the Accountant's Book Value and the book value set forth in the Offer Letter. See Ex. Vol. IV pp. 124–27.

4.   The Brothers and Spalding named additional third-party defendants and filed a counterclaim against the Corporation. The additional third-party defendants were dismissed from the action. The counterclaim was also dismissed.

5.   We accessed the Answer, along with other pertinent case documents, through the Odyssey system.

6.   At one point, the Brothers and Spalding frame the Sisters’ argument as a challenge to the sufficiency of the evidence supporting claims under the CVRA. See Appellees’ Br. pp. 23–26. The Brothers and Spalding argue the Sisters waived any sufficiency challenge “[b]ecause [they] raise[d] this argument for the first time on appeal.” Id. at 23. We disagree with this narrow framing of the issue. Further, to the extent the Brothers and Spalding claim the Sisters waived any such challenge “by not developing any argument,” id., we disagree that the briefing was so deficient as to result in waiver, cf. Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (identifying a preference to resolve cases on the merits “instead of on procedural grounds like waiver”).

7.   In Waldrip v. Waldrip, 976 N.E.2d 102, 117 (Ind. Ct. App. 2012), the plaintiff was falsely accused of criminal conduct. In addition to bringing claims of abuse of process and malicious prosecution—i.e., the claims designed for misuse of judicial machinery—the plaintiff also brought a claim of intentional infliction of emotional distress (“IIED”). To the extent Waldrip suggests the plaintiff could have brought the IIED claim alone, it is notable that a claim of IIED—like claims of abuse of process and malicious prosecution—involves an objective component that safeguards against the chilling of legitimate litigation. That is, to prevail on a claim of IIED, a plaintiff must establish that the defendant engaged in “extreme and outrageous” conduct, which is “conduct that exceed[ed] all bounds usually tolerated by a decent society[.]” Id. In this case, however, none of the claims at issue led to a similar objective analysis as to the nature of the conduct.

8.   At one point, the Brothers and Spalding suggest that we should focus only on post-2013 events. See Appellees’ Br. p. 14 (asserting the trial court found that the “actions precipitating the [claims] occurred in 2015 and 2019, not 2013.”). Doing so would extinguish all of the Brothers’ claims. As to the Brothers, we nevertheless proceed to address claims premised on the Sisters’ actions on or before February 26, 2013.

9.   Having concluded that, as to the Brothers, the only pertinent conduct is that which occurred on or before February 26, 2013, we need not address the Brothers’ contention that the continuing wrong doctrine applied to the Sisters’ subsequent conduct. See Appellees’ Br. pp. 20–21.

10.   Having already resolved claims under the CVRA, we need not address the Brothers’ and Spalding's contention that sufficient evidence supported awarding damages thereunder. See Appellees’ Br. pp. 28–29.

11.   The Brothers and Spalding briefly argue that the Sisters waived any challenge to “the count of failure to keep records,” suggesting the Sisters are thereby foreclosed from challenging the damages award. Appellees’ Br. p. 30. We disagree, concluding that the Sisters’ briefing encompasses a broader challenge to damages. See Appellant's Br. pp. 21–23 (claiming the Brothers and Spalding were not entitled to the damages awarded).

Foley, Judge.

Judges Vaidik and Weissmann concur. Vaidik, J. and Weissmann, J., concur.