Court of Appeals of Indiana | Memorandum Decision 02A03-1610-PL-2473 | October 31, 2017 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

James P. Fenton

David E. Bailey

Eilbacher Fletcher, LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES

Jeremy J. Grogg

Michael A. Barranda

Burt, Blee, Dixon, Sutton & 

Bloom, LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gerald F. Wagner,

Appellant,

v.

Kevin E. Wagner, et al.,

Appellees.

October 31, 2017

Court of Appeals Case No.

02A03-1610-PL-2473

Appeal from the Allen Superior 

Court

The Honorable Craig J. Bobay, 

Judge

Trial Court Cause No.

02D02-1405-PL-156

Bailey, Judge.
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Case Summary

[1] Kevin E. Wagner (“Kevin”) and WDC Management, Inc. (“WDC”) initiated a 

lawsuit against Gerald F. Wagner (“Gerald”) concerning a contract, which led 

to a bench trial. The trial court entered judgment against Gerald on a portion 

of the claims, modified the parties’ obligations under the contract, and awarded

attorney fees to Kevin and WDC. Gerald now appeals; Kevin and WDC crossappeal.

[2] We affirm in part, vacate in part, and remand.

Issues

[3] Gerald presents several issues, which we consolidate and restate as:

I. Whether the trial court erred in modifying the contract in 

favor of Kevin and WDC as a remedy for breach; and

II. Whether the trial court erred in awarding attorney fees to 

Kevin and WDC pursuant to a fee-shifting provision.

[4] On cross-appeal, Kevin and WDC challenge the fee award, arguing that the 

trial court erred by awarding them only one-third of their requested fees. Kevin 

and WDC also ask that we remand for a hearing regarding their entitlement to 

appellate attorney fees under the fee-shifting provision.
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Facts and Procedural History

[5] Gerald and his son Kevin are general partners in fourteen partnerships that own 

apartment buildings in rural areas; WDC manages the apartments. The 

housing is part of a federal government program regulated by the United States 

Department of Agriculture Rural Development (“Rural Development”).

[6] A few years before the instant matter, the parties were engaged in litigation 

concerning their business relationship. During the pendency of that litigation, 

Gerald sent a series of letters to Rural Development alleging that WDC had 

misappropriated funds—one such letter was sent to Barry Ramsey (“Ramsey”). 

Subsequently, the trial court issued a preliminary injunction that enjoined 

Gerald from, among other things, publishing statements that would damage the 

reputations of Kevin and WDC. The parties eventually entered a settlement 

agreement (the “Agreement”), the terms of which are central to the instant 

action. One term provides that Gerald, who is a Certified Public Accountant,

“is to prepare all partnership tax returns for the partnerships in which he is a 

general partner” and submit invoices to WDC in accordance with Rural 

Development guidelines. Id. The Agreement also provides that “[a]ny and all 

protective orders and/or injunctive relief entered by the Court in . . . [certain 

causes] filed and pending . . . shall remain in place until the death of Gerald.” 

Appellee’s App. Vol. II at 63. The trial court approved the Agreement and, in 

its order of dismissal, included verbatim the contract language relating to the 

permanency of injunctive relief.
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[7] In 2014, Kevin and WDC filed the instant action, initially alleging that Gerald 

breached the Agreement by failing to prepare the partnership tax returns; 

Gerald maintained that he needed general ledgers to prepare the returns. Kevin 

and WDC later learned that Gerald had again written to Ramsey, seeking a 

meeting to “settle all matters” between Gerald, Kevin, and WDC. Pl.’s Exhibit 

3. Gerald also told Ramsey that a law firm had advised him that “this is a 

criminal case and should be taken to Washington.” Id. Kevin and WDC 

amended their complaint, alleging that Gerald’s actions were not only 

contemptuous but also constituted a breach of the Agreement. Moreover, 

Kevin and WDC added claims of defamation and tortious interference with a 

business relationship. Gerald filed a counterclaim, alleging that Kevin and 

WDC had breached the Agreement by failing to fully pay him for tax services.

[8] During the pendency of the instant litigation, the trial court entered oral and 

written orders enjoining Gerald from taking actions to interfere with Kevin and 

WDC’s existing business relationships and from communicating with nonparties regarding Kevin and WDC. Subsequently, Gerald sent a letter to the 

Internal Revenue Service, Criminal Division, in which he alleged that WDC 

had violated Rural Development rules and had stolen funds. Kevin and WDC 

filed a contempt petition and the trial court determined that Gerald was in 
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contempt. The trial court ordered Gerald to pay $5,000, which reflected a 

portion of the attorney fees Kevin and WDC incurred due to their petition.1

[9] A bench trial was held in April 2016, during which Gerald made a Trial Rule 

41(B) motion to dismiss the claims against him. The trial court partially 

granted the motion by dismissing the defamation and tortious interference 

claims, which left only the parties’ respective claims of breach.

[10] Following the bench trial, the trial court entered a written order. Therein, the 

trial court concluded that Gerald’s claim lacked merit because Gerald had been 

paid the amounts due to him under the Rural Development guidelines. As to 

Kevin’s and WDC’s claims of breach, the trial court stated that “Gerald 

breached the Settlement Agreement by contacting other parties regarding 

WDC.” Appellant’s App. Vol. II at 34. The trial court did not state that 

Gerald breached the Agreement by failing to prepare the partnership tax returns

(which, by that point, Gerald had filed without penalty). Nonetheless, the trial 

court postponed entry of judgment in anticipation of a hearing on attorney fees 

and, in its subsequent final order, stated that Gerald’s breach involved his 

refusal to prepare the tax returns based upon the materials provided to him.

[11] The hearing on attorney fees included interpretation of the fee-shifting provision

contained in the Agreement, which provides that “[i]n the event any proceeding 

 

1 The trial court later characterized the letter writing as “ongoing and unfounded for many years.” 

Appellee’s App. Vol. II at 52.
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is brought to enforce th[e] Agreement, the prevailing party in that proceeding, 

as that term is defined by the United States Court of Appeals for the Seventh 

Circuit, shall be entitled to recover its costs, including attorney[] fees, incurred 

as a result of the proceeding.” Appellee’s App. Vol. II at 64. Following the 

hearing, the trial court entered a final written order determining that Kevin and 

WDC were prevailing parties and entitled to reasonable attorney fees. The trial 

court awarded Kevin and WDC $26,794.51, which reflects one-third of their

requested fees. In so ordering, the trial court observed that Kevin and WDC 

had engaged in lines of unsuccessful ancillary litigation and “were responsible 

for the generation of much of their own fees.” Id. at 59.

[12] This appeal ensued.

Discussion and Decision

Standard of Review

[13] Here, the trial court entered sua sponte findings and conclusions, in which case 

the “findings control only as to the issues they cover and a general judgment 

will control as to the issues upon which there are no findings.” Yanoff v. Muncy, 

688 N.E.2d 1259, 1262 (Ind. 1997). A general judgment will be affirmed if it 

can be sustained on any legal theory supported by the evidence. Id. As to 

issues covered by the findings, we will not set aside the trial court’s “findings or 

judgment unless clearly erroneous.” Ind. Trial Rule 52(A). “Findings are 

clearly erroneous only when the record contains no facts to support them either 

directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A 
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judgment is clearly erroneous only if the findings do not support the trial court’s 

conclusions or the conclusions do not support the judgment. Id. Moreover, 

“[a] judgment is clearly erroneous if it relies on an incorrect legal standard.” 

Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). In 

conducting our review, we give “due regard . . . to the opportunity of the trial 

court to judge the credibility of the witnesses.” T.R. 52(A). Although we do 

not reweigh the evidence and we defer to the trial court’s findings of fact, we 

give no deference to conclusions of law. Menard, 726 N.E.2d at 1210. A matter 

of contract interpretation presents a question of law, which we review de novo. 

State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016).

Equitable Remedy for Breach

[14] As an initial matter, Gerald argues that the trial court erred in awarding any 

remedy at all; Gerald contends that Kevin and WDC failed to prove that they 

were damaged by a breach of the Agreement and that, absent proof of damages, 

Kevin and WDC are not entitled to relief. Yet, the trial court determined that 

Gerald breached the Agreement by refusing to prepare the tax returns2—and it 

is “well settled that, where there has been a breach of contract by one of the 

parties, the other is at least entitled to nominal damages,” Hall v. Delphi-Deer 

Creek Twp. Sch. Corp., 98 Ind. App. 409, 189 N.E. 527, 530 (1934), though the 

 

2 Gerald argues that the trial court did not identify a breach on this basis because the trial court did not so 

state in its first written order following the trial. However, the trial court postponed entry of judgment and 

ultimately included this basis in its final order from which Gerald now appeals.
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failure to assess nominal damages is not grounds for reversal. Patton v. 

Hamilton, 12 Ind. 256, 257 (1859). Thus, a successful claim of breach supported 

the trial court’s decision to provide a remedy.3

[15] Nonetheless, not all remedies are proper. Here, because Gerald breached the 

Agreement by refusing to file the partnership tax returns, the trial court 

determined that Kevin and WDC were entitled to work with a different 

accountant for future tax returns—thus, the trial court modified the parties’ 

bargained-for obligations under the Agreement. Put another way, the trial 

court rescinded the discrete part of the contract pertaining to accounting 

services. Yet, contract modification is an extreme equitable remedy that is not 

appropriate under these circumstances. See Meyer v. Marine Builders, Inc., 797 

N.E.2d 760, 772 (Ind. Ct. App. 2003) (“[C]ourts may reform written contracts 

only if: (1) there has been a mutual mistake; or (2) one party makes a mistake 

while the other party commits fraud or inequitable conduct.”); see also New Life 

Cmty. Church of God v. Adomatis, 672 N.E.2d 433, 438 (Ind. Ct. App. 1996) 

(“Rescission of a contract is not automatically available. Rather, there must be 

some basis to support the rescission such as fraud, illegality, mutual mistake, or 

 

3 Gerald also argues that the trial court erred in determining that he breached the Agreement by his letter 

writing, contending that the obligation to refrain from such communications arose from the injunctive power 

of the court but was not an independent obligation provided for by the contract. However, we need not 

consider this contention because the trial court addressed the letter writing in a contempt proceeding during 

the pendency of the case that resulted in a contempt sanction, and there were no additional damages assigned 

to the letter writing. Moreover, the attorney fees associated with the contempt proceeding were excluded 

during the calculation of the fee award, which itself was greatly reduced.
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a contract provision providing for rescission.”).

4

 Thus, we conclude that the 

trial court erred in fashioning its equitable remedy, and we accordingly vacate 

that portion of the order permitting the procurement of a different accountant.

Attorney Fees

[16] Under Gerald’s proffered resolution of this matter, the fee award should be 

eliminated because Kevin and WDC succeeded only in defending Gerald’s 

counterclaim.5 But that is not the case. Rather, Kevin and WDC also 

succeeded in proving that Gerald breached the Agreement. Thus, we agree 

with the trial court that Kevin and WDC were prevailing parties under the 

Seventh Circuit approach, which is the approach provided for in the 

Agreement. See First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 

F.2d 1007, 1015 (7th Cir. 1985) (defining “prevailing party” as the party who 

prevails as to the substantial part of the litigation). We next turn to the 

argument presented on cross-appeal, which is that the trial court erred in 

awarding Kevin and WDC only one-third of their requested attorney fees.

[17] “We will enforce a contract allowing for recovery of attorney fees, but ‘[t]he 

amount recoverable for an award of attorney fees is left to the sound discretion 

of the trial court.’” Fischer v. Heymann, 12 N.E.3d 867, 874 (Ind. 2014) (quoting 

 

4 Moreover, we disagree with Kevin’s and WDC’s contention that modifying the Agreement was justified as 

a use of the trial court’s “inherent power to punish” Gerald. Appellee’s Br. at 25.

5 Gerald presents no challenge to the ruling on his counterclaim.
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Dempsey v. Carter, 797 N.E.2d 268, 275 (Ind. Ct. App. 2003), trans. denied). The 

trial court generally reviews the requested amount for reasonableness. See id.; 

Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1002 (Ind. Ct. App. 

2015). Several factors bear on the reasonableness of attorney fees, among them, 

“the amount involved and the results obtained.” Ind. Professional Conduct 

Rule 1.5; see Fischer, 12 N.E.3d at 874 (noting that courts may consider such 

factors as the hourly rate, the result achieved, and the difficulty of the issues).

[18] Here, the trial court set forth thoughtful remarks regarding its decision to award 

Kevin and WDC only one-third of their requested fees:

[T]he court notes the many other theories of recovery and 

defensive strategies that Kevin and WDC presented, all of which 

were not terribly successful, but which nonetheless required 

additional expenditure of time and effort, resulting in the 

accumulation of substantial additional attorney[] fees. Much of 

that ancillary litigation was simply not necessary to resolve the 

principal dispute, and as such, Kevin and WDC were responsible 

for the generation of much of their own fees.

Appellee’s App. at 58-59. Although Kevin and WDC argue that the case 

involved “entangled claims with the same set of operative facts,” Appellee’s Br. 

at 29, and that it would have been “borderline malpractice” not to pursue 

certain claims, id. at 27, we are not persuaded that the trial court abused its 

discretion in awarding $26,794.51 in attorney fees. We accordingly affirm the 

fee award selected by the trial court. Moreover, we acknowledge that “[w]hen 

a contract provision provides that attorney fees are recoverable, appellate 

attorney fees may also be awarded,” Humphries v. Ables, 789 N.E.2d 1025, 1036
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(Ind. Ct. App. 2003), and so we remand for a determination of the propriety of 

appellate attorney fees in light of our decision in this matter.

Conclusion

[19] The trial court did not err in finding that Gerald had breached the contract, but 

it was error in these circumstances for the court to fashion an equitable remedy 

that modified the parties’ obligations under the Agreement. The trial court did 

not abuse its discretion in reducing the attorney fee award, and we remand for a 

determination regarding Kevin’s and WDC’s entitlement to appellate attorney 

fees pursuant to the Agreement.

[20] Affirmed in part, vacated in part, and remanded.

Brown, J., and Pyle, J., concur.