James K. McConnell, Appellant-Plaintiff v. Martha A. Doan; Marilyn S. Hall; David Fee; Jerome Henry, Jr.; Thomas B. Walsh; Tim Miller; and Nicolas Ciocca; Appellees-Defendants (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2019, James McConnell filed a derivative-shareholder lawsuit against Martha Doan, Marilyn S. Hall, David Fee, Jerome Henry, Jr., Thomas B. Walsh, Tim Miller, and Nicolas Ciocca (collectively, “Appellees”), who comprised the then-board of directors of F. McConnell & Sons (“FMS”). In May of 2022, McConnell and Appellees executed a settlement agreement (“the Agreement”) pursuant to which FMS would redeem shares held by McConnell and sever his connection with the company. After McConnell's initial appeal in 2023 (“the First Appeal”) we decided, under Cause No. 24A-CT-145, that the commercial court had not abused its discretion in appointing a commercial court master (“CCM”)¹ pursuant to Indiana Commercial Court Rule 5 and Indiana Rule of Trial Procedure 70 to take necessary steps to satisfy McConnell's contractual obligations and that the Agreement was enforceable. McConnell filed a Notice of Appeal again on June 6, 2024, which appeal this Court dismissed with prejudice in August of 2024 under Cause No. 24A-CT-1338 (“the Second Appeal”). The instant matter is McConnell's third appeal, in which McConnell challenges the commercial court's order further enforcing the Agreement and dismissing his other claims. We affirm.

Facts and Procedural History

[2] The relevant facts, as set forth in the First Appeal, are as follows:

On January 28, 2019, McConnell filed a derivative shareholder lawsuit against Appellees. On May 20, 2022, McConnell and Appellees executed the Agreement. The Agreement states, in relevant part:

1. Mechanism for Settlement.

a. The Parties agree to submit the most recent audited financial information for [FMS] from Katz Sapper Miller to an investment firm for purposes of providing an opinion regarding the value of Jim McConnell's shares in FMS determined from the net enterprise value of FMS including the fair market value of its real estate minus any real estate indebtedness (together, “Per Share Value of FMS”). [․]

b. Upon the completion of the calculation of the Per Share Value of [ ] FMS, FMS shall redeem Jim McConnell's FMS shares at the per share value determined by the investment banker, including any shares that he will possess in the future upon dissolution of the Trust that currently holds approximately 247 shares of FMS. The intent and purpose of this agreement is to ensure that all of Jim McConnell's current or future shares in FMS are redeemed.

c. The Per Share Value of FMS, as calculated by the investment banker, is binding on FMS, Defendants, and Jim McConnell.

Appellant's App. Vol. II pp. 102–03. The parties further agreed that McConnell would have “no further involvement with FMS, directly or indirectly[.]” Appellant's App. Vol. II p. 103.

After receiving notice of resolution of the claims, the commercial court held a conference on May 23, 2022, at which time the parties reported the intent to stipulate to the appointment of a CCM, specifically an investment banker, to “assist in performing work necessary in fulfilling the terms of the comprehensive settlement agreement.” Appellant's App. Vol. II p. 86. On May 26, 2022, Greenwich Capital Group (“Greenwich”), the investment banker chosen to perform the per-share valuation, provided the parties with an engagement letter outlining the scope of services and fees relating to the valuation to be performed.

On June 17, 2022, FMS received correspondence from McConnell indicating that he had transferred eighteen of his shares in FMS to eight individuals. On June 21, 2022, Appellees moved to enforce the Agreement, find McConnell in contempt of court, order return of funds, and award them attorney's fees. McConnell had also refused to engage Greenwich to perform the valuation as required pursuant to the Agreement and had refused to authorize his then-counsel to agree to file the stipulation to appoint Greenwich as a CCM to perform the valuation.

On August 4, 2022, the commercial court granted Appellees’ motion to enforce, ordering the following specific actions:

2. Consistent with the parties’ settlement agreement, the Court ORDERS the parties to file a Stipulation for Appointment of [CCM] by August 12, 2022;

3. Consistent with the settlement agreement, the Court ORDERS the parties to file a joint motion to stay the relevant proceedings pending in Adams County;

4. The Court ORDERS Plaintiff James K. McConnell to unwind the purported transfer of shares that occurred on or about June 15, 2022;

5. The Court ORDERS the parties to work together, along with the Trustee and Trustee's counsel, to effectuate a redemption of Plaintiff James K. McConnell's Trust Shares, and that the process to effectuate the redemption of Plaintiff James K. McConnell's Trust shares shall not be a basis upon which all other aspects of the parties’ settlement agreement be delayed; and

6. The Court sets this matter for a hearing on November 8, 2022 at 2:30 (Courthouse, Room 316), at which time the Court will:

6.1 Hear evidence and require Plaintiff James K. McConnell to show cause why he should not be found in contempt of court failing to comply with this Court's Orders; and

6.2 Determine whether to impose sanctions against Plaintiff James K. McConnell, which sanctions may include: reimbursement of Defendants’ reasonable attorney fees associated with enforcement of the settlement agreement in all respects; return of the initial consideration that Defendants paid to Plaintiff James K. McConnell pursuant to the settlement agreement; and any other sanction the Court deems reasonable in light of the demonstrated efforts and relative progress made by Plaintiff to comply with the settlement agreement and this Court's Order.

7. Plaintiff James K. McConnell and all counsel must personally appear at the November 8, 2022 hearing.

Appellant's App. Vol. II pp. 169–70.

On August 12, 2022, the parties filed a stipulation to appoint a CCM. On August 16, 2022, the commercial court appointed Greenwich to be CCM, to “provide the Per Share Market Value of [FMS] in accordance with an engagement letter with Greenwich to be reasonably agreed to[,]” and determine “the information needed for the purpose of performing the calculation of the Per Share Market Value of FMS.” Appellant's App. Vol. II pp. 174–75.

As it happens, McConnell failed to provide Greenwich with an appropriate and reasonable engagement letter because he repeatedly suggested terms that contradicted the terms of the Agreement. On November 3, 2022, Appellees filed their report to the commercial court with regard to the conduct of McConnell and their request for relief because of his continued refusal to engage Greenwich to perform a valuation of his FMS shares (“the Contempt Report”). As of the date of filing the Contempt Report, McConnell had also taken no action to unwind his transfer of FMS shares.

Because of McConnell's ongoing lack of cooperation, including his refusal to obey the commercial court's orders of May 23, August 4, and August 16, 2022, Appellees requested the appointment of a CCM pursuant to Commercial Court Rule 5 and Trial Rule 70 to fulfill the terms of the Agreement, including undertaking any action necessary to transfer McConnell's shares in FMS and unwinding McConnell's transfer of his FMS shares.

On November 8, 2022, the commercial court found McConnell in contempt of the commercial court's orders of August 4 and 16, 2022, and ordered the following specific relief:

3. The Court finds and concludes that James McConnell has no intention of following the terms and conditions of the [Agreement] reached in this matter on May 20, 2022. The Court also finds and concludes that James McConnell has demonstrated that he has no intention of following the above-referenced August 4, 2022, and August 16, 2022 Orders of the Court. James McConnell is therefore found in contempt of the Court's Orders. [․]

3.1 The Court Orders [FMS] to engage [Greenwich], the previously appointed [CCM], for purposes of determining the per share market value of the shares of FMS, consistent with the terms of the [Agreement] and consistent with the Court's August 16, 2022 Order Appointing [CCM]. As James McConnell has unreasonably failed to engage Greenwich, engagement by FMS alone is sufficient to engage Greenwich, and it is not required that any engagement of Greenwich include James McConnell's signature;

3.2 Consistent with Indiana Commercial Court Rule 5 and Indiana Trial Rule 70, the Court permits Defendants to file a Motion to Appoint a Special Master, for the purpose of appointing a Special Master to execute all required documentation to effectuate the redemption of James McConnell's FMS shares upon completion of the valuation by Greenwich. [․]

3.3 On or about June 15, 2022, James McConnell attempted to thwart the [Agreement] and subsequently failed to comply with the Court's Orders by his actions related to the purported transfer of his FMS shares. Consistent with Indiana Commercial Court Rule 5 and T.R. 70, the Court also permits Defendants to file a Motion to Appoint a [CCM] for the purpose of authorizing a Special Master to approach the Purported Transferees [․] to execute appropriate Waivers and/or Disclaimers of Interest, prepared by FMS, relating to the shares James McConnell purportedly transferred on or about June 15, 2022[.] If the [CCM], for any reason, is unable to obtain the appropriate Waivers and/or Disclaimers of Interest from any of the Purported Transferees, the [CCM], pursuant to Indiana Commercial Court Rule 5 and T.R. 70, is authorized to execute the appropriate Waivers and/or Disclaimers of Interest. The [CCM] shall also be authorized to undertake any and all other actions necessary, including interpleading any of the Purported Transferees into this litigation, to address the Purported Transfers such that the subject shares in FMS will be redeemed by FMS, as contemplated in the [Agreement];

3.4 The Court finds and concludes that the above-referenced Purported Transfers were, and are deemed, void ab initio. The Court Orders that James McConnell shall not undertake any actions to transfer any shares in FMS other than for purposes of FMS redeeming James McConnell's shares in FMS as required by the [Agreement];

3.5 The Court Orders that FMS is authorized, as reasonably necessary, to issue duplicate stock certificates in James McConnell's name to facilitate proper redemption of all shares of James McConnell in FMS in accordance with the [Agreement] and the above-referenced prior Orders of the Court. In the event FMS issues such duplicate stock certificates, FMS shall hold said certificates until they are redeemed by FMS, and the certificates shall not be placed into the possession of James McConnell; and

3.6 Consistent with Indiana Commercial Court Rule 5 and T.R. 70, the Court permits Defendants to file a Motion to Appoint a [CCM] for the purpose of authorizing the [CCM] to execute all documentation necessary to effectuate the redemption of any and all shares that James McConnell will possess in the future upon the dissolution of the Trust that currently holds approximately 247 shares of FMS (the “Trust Shares”). This execution is in accordance with Paragraph 1(b) of the [Agreement].[․]

3.6.1 The [CCM] shall be authorized to execute an appropriate Redemption Agreement for the Trust Shares. That Redemption Agreement shall become effective upon the dissolution of the Trust and the distribution of the Trust Shares to James McConnell. The Redemption Agreement will be held in Escrow by the [CCM] until the dissolution of the Trust; and

3.6.2 Upon completion of the valuation by Greenwich, FMS shall provide funds to the [CCM] equal to the per share market value of the Trust shares. Those funds will be held by the [CCM] in escrow for purposes of payment to James McConnell upon dissolution of the Trust.

Appellant's App. Vol. III pp. 60–63. On December 20, 2022, the commercial court issued its order appointing Edward E. Beck to be CCM to enforce the terms of the Agreement.

McConnell v. Doan, 217 N.E.3d 1257, 1259–63 (Ind. Ct. App. 2023) (first set of brackets added, all others in original).

[3] In addition to the terms of the Agreement discussed in the First Appeal, the Agreement also included the following terms:

2. Status of Litigation

The parties agree to stay all litigation between Jim McConnell and [Appellees] currently pending in Allen County and Adams County pending completion of the Per Share Value of FMS calculation and redemption as stated herein. After completion of the redemption in accordance with this Agreement, the Parties agree to dismiss both of the litigations pending in Allen County and Adams County, with prejudice.

[․.]

6. Jim McConnell's Release of [Appellees]

Upon completion of the redemption contemplated herein, Jim McConnell, for himself, his heirs, predecessors, successors, assigns, attorneys and agents, releases and discharges [Appellees], including their heirs, predecessors, successors, assigns, attorneys and agents from any and all claims, known or unknown, which Jim McConnell now has or in the future may have arising them anything which has occurred prior to the date of this Agreement including but not limited to all claims arising from or relating to the derivative claims brought in the above-captioned action or the claims asserted, or that could have been asserted, in the Adams County litigation.

Appellees’ App. Vol. II p. 19.

[4] In the First Appeal, McConnell argued that the commercial court had abused its discretion in appointing CCM Beck and that the Agreement was unenforceable. Id. at 1263. On August 29, 2023, we concluded that the commercial court had acted within its discretion pursuant to Commercial Court Rule 5 and Trial Rule 70 when it appointed CCM Beck, affirming the commercial court's December 20, 2022 order. Id. at 1263, 1264–65. McConnell further argued that “leaving the particulars of the engagement letter up to a reasonable agreement in the future and giving the parties the option to participate in communications with the Special Master renders the Agreement nothing more than an agreement to agree.” Id. at 1266. Disagreeing, we concluded that McConnell and Appellees “by counsel, negotiated the terms of the Agreement. The parties knowingly and voluntarily entered into the Agreement and, in doing so, agreed to be bound by the terms of the Agreement.” Id. at 1265. We further concluded that the matters which McConnell pointed to were

relatively minor and have little to do with the essentials of the Agreement, which, at its heart, is an agreement regarding the redemption and valuation of McConnell's FMS shares. Read as a whole, the Agreement clearly indicates an intent by McConnell and Appellees to be bound by an agreement that FMS would redeem McConnell's shares, severing his connection with the company. Because the language McConnell cites has no effect on the essentials of the Agreement, he has failed to establish that it is an unenforceable “agreement to agree.”

Id. at 1266. We found no support for McConnell's contention that it would be impossible to redeem his trust shares in FMS, and we noted that “the defense of impossibility does not apply to situations in which the condition that is causing the alleged impossibility existed at the time of agreement, which is the case here.” Id. at 1265 n.3.

[5] On December 7, 2023, Appellees filed a motion for the redemption of shares, payment to McConnell for that redemption, and escrow of funds for the redemption of the shares held in trust. On February 22, 2024, the commercial court granted the motion and provided the following calculation of payment to McConnell for the redemption of his shares based on the Per Share Market Value provided by Greenwich:

2. The Court finds that the consideration to be paid to James McConnell shall be $353,515.23 calculated as follows:

a. Value of 91 shares[:] $522,251.73 LESS b. Attorney Fees and Expenses[:] $83,574.00 i. Barrett McNagny[:] $31,192.00 ii. Burt Blee[:] $52,382.00 c. Master Beck's Fees[:] $4,987.50 d. Return of Settlement Proceeds[:] $45,000.00 e. 1/212 Greenwich Expenses[:] $25,175.00 f. Additional Sanctions[:] $10,000.00 $353,515.23

Appellant's App. Vol. III pp. 208–09. The commercial court further ordered that $303,515.23 be paid to McConnell directly, and that the remaining $50,000.00 be deposited with CCM Beck to be held in escrow “through the fruition of this litigation and the completion and fulfillment of the terms of the [Agreement.]” Appellant's App. Vol. III p. 210.

[6] With regard to McConnell's FMS shares held in trust, the commercial court determined that “[c]urrent indications are that, upon dissolution of the Trust, James McConnell shall receive nineteen (19) shares in FMS. As such ․ [Appellees] shall provide $109,041.57 to [CCM] Beck to be held in escrow until the Trust is dissolved and any Shares in FMS received by James McConnell can be redeemed.” Appellant's App. Vol. III p. 211. In the event that McConnell does not receive nineteen shares of FMS upon dissolution of the trust, the commercial court's order stipulated that the amount paid by FMS would be adjusted accordingly.

[7] On March 6, 2024, CCM Beck filed a status report with the commercial court which provided as follows:

1. On March 6, 2024, the undersigned, pursuant to the Court's order of February 22, 2024, mailed to James McConnell, by certified mail, Check No. 315861 from [FMS] in the amount of $303,515.23.

2. On March 6, 2024, the undersigned executed a Stock Redemption Agreement in his capacity as Special Master for the redemption by [FMS] of 91 shares of the common stock of the company owned by James K. McConnell.

3. On March 6, 2024, pursuant to the court's order of February 22, 2024, the undersigned deposited in his trust account the total sum of $159,041.57 which funds will remain in the undersigned's trust account pending further order of the Court.

Appellant's App. Vol. III p. 222.

[8] On March 24, 2024, McConnell filed a motion to correct error in the February order, which motion the commercial court denied. On May 1, 2024, McConnell filed a motion for relief from judgment, which motion the commercial court denied. On June 6, 2024, McConnell filed a Notice of Appeal with this Court (“the Second Appeal”), regarding the commercial court's order denying the motion for relief from judgment. McConnell filed a motion for voluntary dismissal of the Second Appeal on August 19, 2024. On August 22, 2024, we issued an order dismissing the Second Appeal with prejudice.

[9] On September 6, 2024, Appellees filed a motion to enforce the Agreement, requesting the disbursement of certain escrow funds and that the commercial court dismiss pending litigation in Adams County and all other pending claims brought by McConnell, pursuant to the Agreement. Following a hearing on October 31, 2024, the commercial court issued a “Further Order Enforcing Settlement Agreement and Order Dismissing Plaintiff's Claims” (“the October 31 Order”). Appellant's App. Vol. II p. 37. The October 31 Order provided the following:

1. James McConnell remains non-compliant with the Settlement Agreement, as described in the [Appellees’] Motion.

2. Instead of addressing the merits of the Motion, James McConnell continues to insist and argue that the Court of Appeals of Indiana erroneously determined the outcome of his multiple appeals.

3. In open Court, contrary to the Settlement Agreement, James McConnell refused to execute the Stipulation of Dismissal, With Prejudice, regarding the Adams County litigation[.]․ Such refusal violates the Settlement Agreement.

4. Accordingly, [CCM Beck] shall execute the Stipulation of Dismissal, With Prejudice, of the Adams County litigation[.]․

5. [CCM Beck] is hereby Ordered to disburse $13,578.25 of the $50,000.00 being held in his escrow account for such purposes to Jeremy Grogg, counsel for FMS, to reimburse FMS and [Appellees] for attorney's fees and expenses incurred relating to James McConnell's breach of the Settlement Agreement and violation of this Court's prior Orders.

6. Consistent with the Settlement Agreement, any and all claims asserted herein by James McConnell against all of the [Appellees] are hereby dismissed, with prejudice. Costs to Plaintiff. Costs paid. This is a final judgment.

7. No further action is taken in this matter at this time. However, pending dissolution of the related Trust, this cause remains pending, but is presently stayed. No further distribution of the above-referenced escrow is yet Ordered.

Appellant's App. Vol. II pp. 37–38.

[10] On November 5, 2024, Appellees and McConnell, through CCM Beck, filed the stipulation of dismissal with prejudice in the Adams County litigation, and on November 12, the Adams Superior Court dismissed the pending litigation with prejudice.

Discussion and Decision

I. Previous Appeals

[11] As an initial matter, we have already disposed of several issues that McConnell raises in the instant appeal. See McConnell, 217 N.E.3d at 1257.

The law of the case doctrine provides that an appellate court's determination of a legal issue binds the trial court and the appellate court in any subsequent appeal involving the same case and substantially the same facts. The purpose of the doctrine is to minimize unnecessary repeated litigation of legal issues once they have been resolved by an appellate court. The doctrine is based upon the sound policy that once an issue is litigated and decided, that should be the end of the matter. To invoke the doctrine, the matters decided in the earlier appeal must clearly appear to be the only possible construction of a decision. Accordingly, under the law-of-the-case doctrine, relitigation is barred for all issues decided directly or by implication in a prior decision. Thus, questions not conclusively decided in the earlier appeal do not become the law of the case.

Gaeta v. Huntington Natl. Bank, 164 N.E.3d 782, 786–87 (Ind. Ct. App. 2021) (internal citations and quotations omitted).

[12] In the First Appeal, we concluded that the commercial court had acted within its discretion pursuant to Commercial Court Rule 5 and Trial Rule 70 when it appointed CCM Beck, affirming the commercial court's December 20, 2022 order. McConnell, 217 N.E.3d at 1263, 1264–65. We further concluded that McConnell and Appellees “by counsel, negotiated the terms of the Agreement. The parties knowingly and voluntarily entered into the Agreement and, in doing so, agreed to be bound by the terms of the Agreement[,]” and the matters which McConnell pointed to were

relatively minor and have little to do with the essentials of the Agreement, which, at its heart, is an agreement regarding the redemption and valuation of McConnell's FMS shares. Read as a whole, the Agreement clearly indicates an intent by McConnell and Appellees to be bound by an agreement that FMS would redeem McConnell's shares, severing his connection with the company. Because the language McConnell cites has no effect on the essentials of the Agreement, he has failed to establish that it is an unenforceable “agreement to agree.”

Id. at 1265, 1266. We also found no support for McConnell's contention that it would be impossible to redeem his trust shares in FMS, and we noted that “the defense of impossibility does not apply to situations in which the condition that is causing the alleged impossibility existed at the time of agreement, which is the case here.” Id. at 1265 n.3. To get straight to the point, many of McConnell's arguments in the instant appeal, including that the Agreement is unenforceable and impossible, that the commercial court did not have the authority to appoint the CCM, and that the commercial court's findings of contempt against him were improper, are precluded by the law-of-the-case doctrine. To the extent that McConnell attempts to relitigate the legal issues already resolved by this court in his First Appeal, this is barred by the law-of-the-case doctrine.

[13] We also note that McConnell makes several arguments regarding orders which were issued before the Second Appeal had been initiated, including that the February 22, 2024 order was improper or amounted to abuse of discretion. We have long held that “ ‘dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions that might have been litigated[.]’ ” Marion Cnty. Cir. Ct. v. King, 150 N.E.3d 666, 672 (Ind. Ct. App. 2006) (quoting Afolabi v. Atlantic Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)), trans. denied. Because the Second Appeal was dismissed with prejudice, review of any questions that might have been litigated during that appeal are precluded by res judicata. See, e.g., Fox v. Nichter Constr. Co., 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012) (providing that dismissal of an appeal with prejudice constitutes a “dismissal on the merits” and “is conclusive of the rights of the parties and is res judicata as to any questions that might have been litigated”), trans. denied.

II. FMS Reimbursement

[14] The only issues left for review appear to concern the October 31 Order. McConnell disputes the commercial court's order for CCM Beck to “disburse $13,578.25 of the $50,000.00 being held in his escrow account for such purposes to Jeremy Grogg, counsel for FMS, to reimburse FMS and [Appellees] for attorney's fees and expenses incurred relating to James McConnell's breach of the Settlement Agreement and violation of this Court's prior Orders.” Appellant's App. Vol. II pp. 37–38. McConnell contends that the disbursement is “a product of the previous improper findings of contempt.” Appellant's Br. p. 14.

[15] “Whether a party is in contempt of a court order is a matter left to the trial court's discretion.” McCallister v. McCallister, 105 N.E.3d 1114, 1119 (Ind. Ct. App. 2018). We will reverse the trial court's finding of contempt only for an abuse of discretion, i.e., when the decision is against the logic and effect of the facts and circumstances before it. Id. at 1120. We neither reweigh the evidence nor judge the credibility of the witnesses, and we will consider only the evidence and reasonable inferences in support thereof. Id. Furthermore, Indiana trial courts have “inherent authority to award attorney fees for civil contempt.” Id. “This authority stems from the court's power to enforce compliance with its orders and decrees.” Id. “[O]nce a party is found in contempt, the trial court has the authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions, including the award of attorney fees.” Id.

[16] We have little hesitation in concluding that the commercial court did not abuse its discretion in ordering CCM Beck to reimburse FMS for costs incurred as a result of McConnell's contemptuous acts. The commercial court appointed CCM Beck to step into McConnell's shoes and perform specific acts which McConnell refused to complete, which we determined was clearly within the authority granted to the commercial court by Commercial Court Rule 5 and Trial Rule 70 in the First Appeal. See McConnell, 217 N.E.3d at 1263, 1264. The October 31 Order requires CCM Beck to disburse $13,578.25 of the $50,000.00 held in escrow for attorney's fees and expenses incurred relating to McConnell's breach of the Agreement and violations of the commercial court's prior orders. The record is clear that McConnell continued to be recalcitrant, refusing to obey several orders of the commercial court over the course of this litigation, which ultimately cost the Appellees thousands of dollars in expenses. Because the commercial court had the authority to compensate Appellees for the losses and damages resulting from McConnell's contemptuous actions, the award of fees which McConnell disputes was well within the scope of the commercial court's authority ² and was not an abuse of discretion.³ See McCallister, 105 N.E.3d at 1119.

III. Dismissal of Pending Litigation

[17] McConnell contends that the commercial court erred in dismissing his other pending claims against Appellees. “Indiana strongly favors settlement agreements and if a party agrees to settle a pending action, but then refuses to consummate his settlement agreement, the opposing party may obtain a judgment enforcing the agreement.” MH Eq. Managing Member, LLC v. Sands, 938 N.E.2d 750, 757 (Ind. Ct. App. 2010) (citation omitted), trans. denied. We review contract interpretation questions de novo. Decker v. Star Fin. Group, Inc., 204 N.E.3d 918, 921 (Ind. 2023) (citations omitted). “The goal of contract interpretation is to ascertain and give effect to the parties’ intent as reasonably manifested by the language of the agreement.” Id. at 920 (internal quotation marks and citation omitted). Where the language is clear and unambiguous, “it must be given its plain and ordinary meaning.” Id. at 920–21.

[18] In relevant part, McConnell asserts that the dismissals of the Adams and Allen County actions were improper because the Agreement required “full redemption” of all of McConnell's shares, including those held in trust, in order for the dismissals to occur. Appellant's Br. p. 38. For context, the October 31 Order provided the following:

3. In open Court, contrary to the Settlement Agreement, James McConnell refused to execute the Stipulation of Dismissal, With Prejudice, regarding the Adams County litigation[.]․ Such refusal violates the Settlement Agreement.

4. Accordingly, [CCM Beck] shall execute the Stipulation of Dismissal, With Prejudice, of the Adams County litigation[.]․

* * *

6. Consistent with the Settlement Agreement, any and all claims asserted herein by Plaintiff James McConnell against all of the [Appellees] are hereby dismissed, with prejudice. Costs to Plaintiff. Costs paid. This is a final judgment.

Appellant's App. Vol. II pp. 37–38.

[19] Again, after our opinion had been issued in the First Appeal, Appellees filed a motion for the redemption of shares, payment to McConnell for that redemption, and escrow of funds for the redemption of the shares still held in trust. The commercial court granted the motion, provided a calculation of payment to McConnell for the redemption of his shares, ordered that the amount owed to McConnell be paid to him directly, but that $50,000.00 be deposited with CCM Beck to be held in escrow “through the fruition of this litigation and the completion and fulfillment of the terms of the [Agreement.]” Appellant's App. Vol. III p. 210.

[20] With regard to McConnell's FMS shares held in trust, the commercial court determined that “[c]urrent indications are that, upon dissolution of the Trust, James McConnell shall receive nineteen (19) shares in FMS. As such ․ [Appellees] shall provide $109,041.57 to [CCM] Beck to be held in escrow until the Trust is dissolved and any Shares in FMS received by James McConnell can be redeemed.” Appellant's App. Vol. III p. 211. In the event that McConnell does not receive nineteen shares of FMS upon dissolution of the trust, the commercial court's order further stipulated that the amount paid by FMS would be adjusted accordingly.

[21] The record shows that Appellees and CCM Beck have fully complied with the order of the commercial court and the Agreement. On March 6, 2024, CCM Beck filed a status report with the commercial court which provided that he had mailed a check in the amount of $303,515.23 to McConnell on March 6, 2024, pursuant to the commercial court's order. The status report further provided that CCM Beck had executed a Stock Redemption Agreement for the redemption of McConnell's ninety-one shares of FMS and that, in CCM Beck's trust account, he had deposited the total sum of $159,041.57.

[22] To determine whether the Agreement contemplated the redemption of the shares of FMS which McConnell held in trust, we look to the plain terms of the Agreement, which provide the following:

Upon the completion of the calculation of the Per Share Value of [ ] FMS, FMS shall redeem Jim McConnell's FMS shares at the per share value determined by the investment banker, including any shares that he will possess in the future upon dissolution of the Trust that currently holds approximately 247 shares of FMS. The intent and purpose of this agreement is to ensure that all of Jim McConnell's current or future shares in FMS are redeemed.

Appellees’ App. Vol. II p. 18–19. It appears that, by the plain language of the Agreement, the parties fully contemplated McConnell's shares held in trust as “shares he will possess in the future upon dissolution of the Trust[.]” Appellees’ App. Vol. II p. 18. Furthermore, the parties agreed that “[a]fter completion of the redemption in accordance with this Agreement, the Parties agree to dismiss both of the litigations pending in Allen County and Adams County, with prejudice.” Appellees’ App. Vol. II p. 19. The parties also agreed that “[u]pon completion of the redemption contemplated herein” McConnell would release and discharge the Appellees from “any and all claims, known or unknown” which McConnell “has or in the future may have arising from anything which has occurred prior to the date of this Agreement[.]” Appellees’ App. Vol. II p. 19.

[23] The record shows that except for the dissolution of the trust effectuating the final redemption of McConnell's trust shares, as a result of the October 31 Order, everything that could be completed in accordance with the Agreement has been completed. McConnell's shares in FMS have been redeemed and McConnell has been paid for the Per Share Market Value as determined by Greenwich. Any funds tied to McConnell's shares of FMS held in trust have been paid for by Appellees and are being held in escrow by CCM Beck until the trust is dissolved, and the commercial court ordered that, in the event that McConnell does not receive nineteen shares of FMS upon dissolution of the trust, the amount paid by FMS would be adjusted accordingly. Again, the parties clearly contemplated the disposition of McConnell's trust shares when they entered into the Agreement, and we agree with our conclusion in the First Appeal that, read as a whole, the Agreement indicates an intent by McConnell and Appellees to be bound by an agreement that FMS would redeem McConnell's shares, severing his connection with the company, see McConnell, 217 N.E.3d at 1266. Appellees have lived up to their end of the bargain, and McConnell must do the same. Therefore, we conclude that the commercial court's dismissal of McConnell's other pending claims was proper.⁴

[24] We affirm the judgment of the commercial court.

FOOTNOTES

1.   Between the First Appeal and this appeal, former Indiana Commercial Court Rule 5 was replaced with Rule 6, replacing the former term “Commercial Court Master” with “Commercial Court-Appointed Neutral[.]” In order to avoid confusion in this case, we will employ the former term in this decision.

2.   We further note that the parties had explicitly agreed that “[i]f the Parties must commence an action to enforce the terms of this Agreement, the prevailing party shall be entitled to an award, in addition to any other claims or damages, of its costs and expenses including attorney's fees, in connection with said enforcement action.” Appellant's App. Vol. II p. 20. Even by the terms of the Agreement, Appellees, as the prevailing party, were entitled to receive the award at issue and the commercial court had the authority to impose such an award.

3.   To the extent that McConnell argues that the amount of attorney's fees awarded to Appellees was unreasonable, McConnell has waived this argument by failing to point to any evidence of abuse of discretion or unreasonableness or provide a cogent argument relating to such a claim. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied. Furthermore, to the extent that McConnell poses an issue of improper sanctions, we note that the commercial court's imposition of sanctions against McConnell occurred before McConnell initiated his Second Appeal. As discussed above, our order dismissing McConnell's second appeal with prejudice precluded review of any questions that might have been litigated during that appeal.

4.   McConnell additionally contends that the commercial court denied him due process because it did not “allow” him to make objections at the October 28, 2024 hearing. We disagree with McConnell's suggestion and note that nothing in the record indicates that the trial court prohibited McConnell from making objections.

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur