Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 1 of 34

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.

ATTORNEY FOR APPELLANTS

Scott E. Yahne

Yahne Law, P.C.

Munster, Indiana 

ATTORNEYS FOR APPELLEES

Larry G. Evans

Richard M. Davis

Sean E. Kenyon

Hoeppner Wagner & Evans LLP

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jack Weichman; Medical 

Management and Data Services, 

Inc.; and Weichman and 

Associates, P.C.,

Appellants-Defendants,

v.

Domenico Lazzaro, M.D.; 

Joseph Pabon, M.D.; and 

Associated Pathologists of 

Munster, Indiana, P.C.,

Appellees-Plaintiffs

April 13, 2015

Court of Appeals Case No.

45A03-1403-PL-81

Appeal from the Lake Superior 

Court

The Honorable William E. Davis, 

Special Judge

Case No. 45D05-0710-PL-97

Bradford, Judge.
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Case Summary

[1] Appellees-Plaintiffs-Counterclaim Defendants Dr. Domenico Lazzaro, M.D., 

and Dr. Joseph Pabon, M.D. operated Appellee-Plaintiff-Counterclaim 

Defendant Associated Pathologists of Munster, Indiana, P.C. (“the Practice”). 

Dr. Lazzaro became an individual client of Appellant-Defendant Weichman 

and Associates, P.C. (“Weichman & Associates”), in 1982, which was operated 

by Appellant-Defendant-Counterclaim Plaintiff Jack Weichman. Dr. Lazzaro 

and his wife Patricia remained individual clients of Weichman & Associates

until 1999, investing in several Weichman-controlled ventures which resulted in 

losses to the Lazzaros of approximately $800,000.00. The Practice also 

invested $100,000.00 in a Weichman-controlled venture, which investment was 

also lost (Weichman-controlled entities collectively known as “Investment 

Entities”). 

[2] At some point, Weichman advised the Lazzaro’s to open an account with Blunt 

Ellis Loewi (“Blunt Ellis”). In 1987, Weichman began unauthorized options 

trading on the account after forging the Lazzaros’ signatures on certain 

documents, trading activity that resulted in losses of approximately $20,000.00 

to $22,000.00. Weichman also opened a Blunt Ellis account for the Practice, 

which was unknown to the Lazzaros. Ultimately, the Practice lost 

approximately $1,300,000.00 in the Blunt Ellis Account. 

[3] Meanwhile, in 1988, the Practice and Appellant-Defendant-Counterclaim 

Plaintiff Medical Management and Data Services, Inc. (“MMDS”), Inc., also 
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controlled by Weichman, entered into a billing agreement with the Practice 

(“the Agreement”). Beginning around 1994, the Practice began experiencing 

problems related to MMDS’s failure to keep accurate records and adequately 

fulfill reporting requirements. Additionally, as a result of MMDS’s use of 

improper billing codes, the Practice was subjected to Medicare and Medicaid 

audits, resulting in approximately $41,000.00 in fines, interest, and penalties. 

In 1999, the Practice terminated the Agreement and switched billing 

companies. MMDS failed to transfer the Practice’s files to the new company in 

a timely fashion and, in the case of electronically-stored records, never 

transferred them at all. 

[4] In 1999, Drs. Lazzaro and Pabon and the Practice (collectively, “Plaintiffs”) 

sued Weichman, Weichman & Associates, and MMDS (collectively, 

“Defendants”) under various theories, including breach of contract, breach of 

fiduciary duty, and conversion. MMDS filed a counterclaim of breach of 

contract, and Weichman counterclaimed for defamation. Trial on the claims 

finally began in 2009. At trial, Defendants attempted to introduce documents 

purporting to undermine evidence that Dr. Lazzaro was ignorant regarding the 

Blunt Ellis accounts, evidence that the trial court did not allow Defendants to 

introduce on the basis that it had not been timely discovered to Plaintiffs. At 

the conclusion of trial, the trial court entered judgment in favor of the Practice 

for $110,000.00 and Dr. Lazzaro for $340,000.00 and denied MMDS’s and 

Weichman’s counterclaims. 
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[5] Defendants argue on appeal that the trial court erred in (I) not dismissing 

certain of the Plaintiffs’ claims for failure to join indispensable parties, (II) 

rejecting MMDS’s breach of contract claim, (III) entering judgment in favor of 

Dr. Lazzaro and the Practice on claims regarding the Blunt Ellis accounts, (IV) 

concluding that the Plaintiffs’ claims regarding the Blunt Ellis accounts were 

not time-barred, (V) awarding treble damages based on MMDS’s negligent 

handling of the Practice’s billing, and (VI) excluding the evidence of Blunt Ellis 

accounts proffered at trial. Because we conclude that the trial court erred in 

denying MMDS’s breach of contract claim against the Practice, we affirm in 

part, reverse in part, and remand with instructions. 

Facts and Procedural History

[6] Dr. Lazzaro and Patricia became clients of Weichman & Associates in 1982. 

The Lazzaros remained individual clients of Weichman & Associates until 

1999, and while they were clients, Weichman & Associates prepared individual 

tax returns and personal financial statements for them. Weichman & 

Associates also did the Practice’s accounting from approximately 1987 until 

1999. Weichman acted as business/management advisor to the Practice, 

essentially running it. From 1988 until 1999 neither Dr. Lazzaro nor Dr. Pabon 

ever received bank statements or general ledgers for the Practice. On May 1, 

1988, MMDS entered into the Agreement for billing services with the Practice, 

which was owned by Drs. Lazzaro and Pabon. MMDS provided billing 

services for the Practice into 1999. 
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I. Investments Controlled by Weichman

[7] As early as 1984, Weichman began advising the Lazzaros on personal financial 

matters and encouraged several investments, including Broadmoor; U.S. 30 

Building Partnership (“U.S. 30 Building”); U.S. 30 Restaurant, Inc. (“U.S. 30 

Restaurant”); Landings, Inc. (“Landings”); and Dunes Hotel Partnership

(“Dunes Hotel”). Moreover, the Practice invested pension and retirement 

account funds totaling $100,000.00 in Broad Ridge Plaza Associates, Ltd.

(“Broad Ridge”), another Weichman-controlled entity. 

[8] By 1989, the Lazzaros had been investing with Weichman for approximately 

five years but had yet to receive any sort of reports on their investments. In 

November of 1989, Weichman, upon request, produced a handwritten 

summary of the Investment Entities. Weichman’s summary listed the values of 

the investments as follows: 

Investment Fair Market Value of the Investment

Broadmoor $2,500,000-3,000,000

Dunes Motel $1,500,000

Broad Ridge $1,200,000

Gathering Building $225,000
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U.S. 30 Restaurant1 $500,000

Ex. 4. The 1989 report was the only one received by the Lazzaros. 

[9] From 1986 to 1993, The Lazzaros invested in Broadmoor, which operated a 

golf course. Weichman provided information on Broadmoor to the Lazzaros 

on a “sporadic” basis and “was evasive most times [they] were trying to get 

information.” Tr. p. 106. In 1989, the Lazzaros invested in U.S. 30 Building, 

which was an investment in “land or buildings[,]”; U.S. 30 Restaurant, which 

involved the purchase of a restaurant named Phillipe’s, later renamed the 

Gathering; and Dunes Hotel, which invested in “The Spa in Chesterton,” 

which apparently involved a restaurant and hotel. Tr. p. 112. At around the 

same time, the Lazzaros invested in Landings, which operated a bar in 

Merrillville, Indiana. The Lazzaros invested a total of $505,000.00 in 

Broadmoor, $97,000.00 in U.S. 30 Building, $57,000.00 in U.S. 30 Restaurant, 

$98,500.00 in Dunes Hotel, and $35,000.00 in Landings. Ultimately, all of the 

money the Lazzaros invested in the Investment Entities, a total of 

approximately $793,000.00, was lost. Additionally, when Broad Ridge was 

finally sold in 2003, the Practice received no proceeds from the sale. 

 

1

 It is unclear why the Gathering and U.S. Restaurant are listed separately on the investment 

summary, as U.S. Restaurant apparently owned the Gathering. As Patricia testified, “I’m not sure what the 

difference is there.” Tr. p. 139. 
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II. The Blunt Ellis Accounts

[10] At some point, Weichman advised the Lazzaros to open an investment account 

with Blunt Ellis, in which the Lazzaros initially invested $40,000.00. On or 

about February 20, 1987, without the Lazzaros’ knowledge, Weichman forged 

their names to an application to allow options trading on the Blunt Ellis 

account. By the time the Lazzaros’ Blunt Ellis account was closed in 1989, the 

account had lost $20,000.00 to $22,000.00 dollars from options trading. 

[11] Also, Weichman unilaterally opened a Blunt Ellis account for the Practice, 

which the Lazzaros only discovered in 1999. Between January of 1987 and 

July of 1992, $1,437,000.00 was deposited in the Practice’s Blunt Ellis account 

while $1,387,000.00 was withdrawn, resulting in losses of approximately 

$1,300,000.00. The vast majority of the money withdrawn from the Practice’s 

Blunt Ellis account was taken out the day it was deposited or the day after. 

Among the transactions was a 1990 check from the Practice’s Blunt Ellis 

account to Broadmoor for $70,000.00. The payment was authorized by neither 

Dr. Lazzaro nor Dr. Pabon, and there does not seem to have been a legitimate 

business reason for the transfer, as the Practice never invested in Broadmoor. 

III. MMDS 

[12] As previously mentioned, the Practice entered into the Agreement with 

MMDS, an entity controlled by Weichman, in 1988. The Agreement provided, 

in part, as follows:
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THIS AGREEMENT FOR BILLING SERVICES (“the 

Agreement”) is entered into as this 1

st day of May, 1988, between 

[MMDS] and [the Practice] (“Client”). 

....

Section 2. Services to be Provided by MMDS.

(a) Billing Services. MMDS shall provide those billing services 

to Client as are provided for on the attached Schedule A, which 

is expressly made a part of this agreement. 

(b) Collection Services. MMDS will provide collection services 

for accounts unpaid up to 120 days following the billing date by 

sending one or more appropriate collection letters or follow-up 

statements with the content and scheduling of letters to be agreed 

upon by MMDS and Client. At the end of each month, MMDS 

shall furnish Client with a report showing all accounts on the 

books which have been unpaid for 120 or more days. Within 

fourteen (14) business days of the receipt of such report, Client 

will instruct MMDS with respect to each account, either:

(i) To write off such account; or

(ii) To commence such further collection efforts as shall be 

agreed upon by MMDS and Client; or 

(iii) To refer the unpaid account to a collection agency 

designated by the Client. 

....

Section 4. Fees for Services. 

....

(c) Books and Records. MMDS represents and warrants that it 

will maintain accurate books and records of its performance and 

the results of its billing and collection services on Client’s behalf. 

....

Section 6. Preservation of Property and Confidentiality. 

(a) Undertakings by MMDS. MMDS acknowledges and agrees 

that all data of Client delivered to and developed by MMDS is 
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and shall remain the sole and exclusive property of Client, 

subject to the restrictions of this Agreement and for the term of 

the Agreement. MMDS agrees that it will not take or permit any 

of its officers, directors, employees and agents to take any action 

that would have the effect of making an unauthorized disclosure 

to an person or entity, in whole or in part, of any proprietary or 

confidential information of Client, including without limitation, 

information relating to patients or to the business or professional 

practices of Client, which is in the possession of or made 

available to MMDS at any time after the date of execution of this 

Agreement. MMDS represents and warrants that, as a condition 

of employment or retention of MMDS, each of its employees and 

agents would be required to acknowledge the obligations 

contained in this Section 6(a). 

....

Section 8. Term of this Agreement. This Agreement shall be for 

a term of five (5) years, commencing May 1, 1988, and ending 

April 30, 1993, unless sooner terminated as provided for herein. 

At the end of the term of this Agreement, it shall be 

automatically renewed from year to year thereafter unless either 

party serves notice on the other party of its intent to terminate 

this Agreement not less than sixty (60) days prior to the last date 

of the original term or renewal term of this Agreement, as the 

case may be. 

Section 10. Termination. 

(a) Cause. This Agreement may be terminated as follows:

([i]) At the end of the initial term or of any renewal term of this 

Agreement, upon delivery of written notice by either party not 

less than sixty (60) days prior to the expiration date of any such 

initial renewal term; or 

(ii) As of the effective date, confirmed in writing by notice from 

Client to MMDS, of the termination, by non-extension or 

otherwise, of Client’s contract for the provision of professional 

services to The Community Hospital, Munster, Indiana (the 
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“Hospital”), for which services MMDS has been retained for 

provide billing services under this Agreement; or 

(iii) At any time upon the occurrence of an Event of Default, if 

the defaulting party is given both written notice of such default 

and period of not less than fifteen (15) days to cure or commence 

to cure such default, when appropriate. In the event of a 

violation by either party of the provisions of Section 6 of this 

Agreement, such event or Default shall be grounds for immediate 

termination by the other party upon delivery of written notice 

without any requirement of an opportunity to cure. 

(b) Effect.... In the event that this Agreement is terminated by 

either party pursuant to Paragraph (a)(i) or Paragraph (a)(ii) of 

this Section 10, MMDS shall continue for not less than 120 days 

to perform and to be compensated for the performance of services 

in accordance with this Agreement with regard to any accounts 

receivable outstanding as of the effective date of such 

termination. 

Appellant’s App. pp. 49, 50, 53, 54, 55-56, 57, 58-59 (handwritten initials 

omitted). 

[13] MMDS failed to maintain accurate records or adequately report about 

collection efforts. MMDS also failed to notify the Practice about unpaid 

accounts that were over 120 days old. MMDS failed to provide reports 

regarding overdue accounts and also failed to maintain and provide master 

files, patient demographics, and accounts receivable journals to the Practice. 

[14] In approximately 1994, billing issues arose involving the improper use of billing 

codes required by insurers. The Practice experienced communication 

difficulties with MMDS and began receiving patient complaints, which had not 

occurred before. In 1998, improper use of a billing code by MMDS led to a 
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Medicare audit of the Practice. In 1999, the Practice was subject to a Medicaid 

audit resulting from MMDS’s misuse of the same billing code. The Medicare 

audit resulted in a fine of over $33,000.00 plus interest and penalties, and the 

Medicaid audit resulted in a $7000.00 fine. 

[15] On July 1, 1999, the Practice sent a termination notice to MMDS, which reads 

as follows: 

Dear Mr. Weichman:

I am writing on behalf of [the Practice] to give sixty days notice 

of [the Practice’s] termination of the [Agreement] dated May 1, 

1988 between [the Practice] and [MMDS], to be effective 

September 1, 1999. In order to facilitate a smooth transition of 

[the Practice’s] billing to a new billing agent, we expect that 

MMDS will fulfill its obligations under Section 10(b) of the 

Agreement with respect to the transition. 

Appellant’s App. p. 63. 

[16] Section 10(b) of the Agreement required MMDS in the event of termination to 

“employ its best efforts to assist [the Practice] in converting to another billing 

service ... and, in connection with such conversion, will make available to such 

other billing service all date in [the Practice’s] data files currently in possession 

of MMDS[.]” Appellant’s App. p. 59. APS Medical Services (“APS”) began 

billing for the Practice on September 1, 1999. MMDS did not transfer any of 

the Practice’s billing records to APS until January of 2000, and no effort seems 

to have been made to transfer any electronically-stored data. By March of 

2000, MMDS had deleted the Practice’s data from its computer and was never 

transferred to the Practice or APS. The Agreement provided that all data
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“delivered to and developed by MMDS [was to] remain the sole exclusive 

property” of the Practice. Appellant’s App. p. 55. 

IV. Procedural History

[17] On November 8, 1999, the Plaintiffs filed a complaint against the Defendants. 

The complaint alleged that Weichman and Weichman & Associates

“mismanaged these investments either negligently, recklessly or intentionally” 

and sought an accounting of Defendants’ handling of all of Plaintiffs’ various 

investments with them. Appellant’s App. p. 43. The Practice also claimed that 

MMDS had breached the terms the Agreement. On January 5, 2000, MMDS 

filed a counterclaim that the Practice breached the Agreement by failing to pay 

for services rendered, and the Defendants filed a defamation counterclaim 

against Dr. Lazzaro. 

[18] Over the course of eighteen days between November 16, 2009, and May 11, 

2010, the cause was tried to the bench. During trial, Defendants moved for 

judgment on the evidence for claims relating to the Investment Entities on the 

basis that the entities themselves had not been made parties. On December 1, 

2009, the trial court granted the motion in part, dismissing the Plaintiffs’ claim 

for an accounting from the Investment Entities. The trial court allowed claims 

of breach of fiduciary duty against Weichman and Weichman & Associates to 

proceed, however, noting that 

Weichman was the Plaintiffs’ personal accountant. He was their 

business management supervisor, servant, slash, employee. He 

was a co-investor, partner, i.e., shareholder with them in 
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investments. And he was the general partner in the partnerships 

and a managing director in the corporations. 

By allowing these different positions, assuming, by allowing 

himself to assume each of these different positions at the same 

time, there comes the question in these investment entities as to 

whether or not be breached his duty to the Plaintiffs as their 

accountant, regardless of whether he breached his duty to the 

other shareholders, partners, whether he breached his fiduciary 

duty to the corporation of the partnership as a whole by being a 

poor manager, there’s still a question, because while he was 

managing these partnerships and corporations he was also the 

Plaintiffs’ individual accountant and he was their individual 

management employee of their corporation. 

Tr. pp. 1546-47. Following the trial court’s partial denial of their motion for 

judgment on the evidence, the Defendants presented evidence in their defense. 

Defendants did not renew their motion for judgment on the evidence at the 

conclusion of their case. 

[19] On May 3, 2010, the trial court granted a motion for sanctions that had been 

filed by Plaintiffs and prohibited the introduction of certain documents by 

Defendants. Plaintiffs’ proffer indicated that the documents in question 

contained evidence of transactions involving a previous Blunt Ellis account held 

by the Practice some twenty-four years before. The trial court ruled on the 

Plaintiff’s motion as follows:

Plaintiff files a Motion for Sanctions for Defendant’s alleged 

violation of prior Discovery Orders of this Court. Argument is 

heard. The Court upon review of Trial Rule 34(B) and 37(B)(2), 

and the record herein, now Rules as follows:

The Court now finds that the Defendant has violated the Court’s 

Discovery Orders of December 12, 2006, and June 5, 2007. As a 
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sanction, the Court now enters an Order declaring the discovery 

documents delivered to Plaintiff on April 28, 29, and 30, 2010, 

inadmissible and they are not to be referred to at Trial by any 

witness testimony, per Trial Rule 37(B)(2)(b). Neither the 

documents nor testimony concerning them will be admitted to 

oppose Plaintiff’s claims nor support Defendant’s defenses. Also 

Plaintiffs are entitled to costs and fees for prosecuting the 

Motion. 

This discovery was not delivered to Plaintiff before the discovery 

deadline entered by the Court and is not included in the Pre-Trial 

Order, nor can Defendant show that it was previously delivered 

to the Plaintiffs or their prior Attorneys. Protective Order of the 

above sanctions is entered. 

Appellant’s App. p. 43. 

[20] On February 11, 2014, the trial court entered judgment, which contained the 

following findings and conclusions:

I. This matter came on for a Bench Trial of 18 days duration 

spread over a period of 7 months. Jurisdiction and venue being 

agreed upon by the Parties. The action was based upon 

Plaintiff’s complaint and Defendant’s answer and counterclaim. 

The Court now enters the following findings of fact:

....

10. By the mid 90’s MMDS was controlling the [Practice’s] 

Profit Sharing Plan and the [Practice’s] Pension Plan and taking 

money from [Practice’s] profits to fund the Profit Sharing Plan 

and made regular deposits into the Pension Plan. Weichman 

invested [the Practice’s] money in [Broad Ridge,] a real estate 

entity that he, (Weichman) managed. 

....

12. Weichman opened investment accounts with [Blunt Ellis] (in 

investment Company). Money would be deposited into these 

accounts and then withdrawn with no rational explanation and 
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the records of these accounts were not kept by any of the 

Defendants in a regular fashion. 

13. As for these investment accounts the lack of records makes it 

impossible to say how many there were, but they were not 

opened by [the Practice] or the Plaintiffs. In fact their testimony 

was that they knew nothing about them and did not authorize 

and Defendant to open or transfer [Practice] money into them. 

....

18. Lazzaro never gave Weichman the authority to take money 

from [the Practice] and use it in [Lazzaro’s personal investments] 

but a $70,000.00 check was written on [the Practice’s Blunt Ellis] 

account and deposited into one of the partnership accounts 

(Broadmoor Country Club account with Gainer Bank). The 

Partnership entity failed and all money invested therein was lost. 

19. The Broadmoor Country Club was an entity that Weichman 

was performing management functions for at this time. 

... 

39. Weichman advised Lazzaro to open a personal investment 

account with [Blunt Ellis] for the purpose of investing in Blue 

Chip Stocks. 

40. Sometime later (on/or about February 20, 1987) without 

Lazzaros’ knowledge or consent[,] Weichman forged Lazzaros’

name to an application that allowed for options trading from the 

account. 

41. Lazzaro originally deposited $40,000.00 into this account. 

42. Weichman authorized all trading on the Lazzaro account. 

43. Lazzaro’s wife discovered that the account had been altered 

and that margin trading on options was causing interest on the 

margins to be deducted from the account. 

44. Lazzaro lost $20,000.00 due to unauthorized option trading 

losses and expenses on the account. 

....
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A. As to Plaintiff’s Complaint

1. Defendants’ losing, disposing of, and deletion of, most of 

Plaintiff’s records, journals, cancelled checks, and reports 

amounts to spoliation of evidence. Defendant’s summaries are 

self serving[,] inaccurate, and lack credibility. 

2. Due to this spoliation of evidence the Plaintiffs are entitled to 

the presumption that the missing evidence could have been 

detrimental to the Defendants’. See Cahoon Vs. Cummings

734NE2d535, at 545, (Ind. 2000). 

3. The substantial lack of informational facts due to spoliation 

makes it impossible to determine many areas of Plaintiffs 

damages, and any entry of damages in these areas would be 

based on speculation. This is also true of ordering Defendants to 

prepare an accounting. 

4. The Court will award a remedy without resorting to 

speculation as to areas of damages as possible, but for the above 

reasons cannot order an accounting. 

5. The Defendants ... breached their fiduciary duties as 

accountants, shareholders, partners, general partners, managers, 

and caused damages to be suffered by all the Plaintiffs. 

6. MMDS breached [the Agreement] and therefore authorized 

[the Practice] to terminate it. 

7. MMDS[’s] breach resulted in damages to [the Practice]. 

8. Weichman converted some of the money in [the Practice’s] 

Profit Sharing and Pension Fund by opening at least one [Blunt 

Ellis] account without the knowledge of [the Practice] and by 

dealing with the money therein as if it were his own he caused 

damages to [the Practice]. 

9. Weichman breached his duty as a Partner or General Partner 

in the investment entities, which caused damages to Lazzaro and 

Pabon. 
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10. Weichman breached his duty as a Director or Share Holder 

in investment corporations, and caused damages to Lazzaro and 

Pabon.

11. Weichman, and [Weichman & Associates] breached their 

duties as an Agent of [the Practice] in regard to its Pension and 

Profit Sharing Funds. 

12. Weichman, and [Weichman & Associates] breached their 

duties as Accountants by failing to keep their clients, [the 

Practice], Lazzaro, and Pabon informed of what was being done 

and not done, dealing with their money without their 

authorization and taking advantage of their superior knowledge 

and influence over Plaintiffs’ experience in management and tax 

preparation and other accounting functions. Further by treating 

Plaintiffs’ money as if it belonged to Defendants and converting 

Plaintiffs’ money in some cases. Which caused damage to 

Plaintiffs. 

B. As to Defendant’s Counterclaim

1. The law with [the Practice] and against the Counter-claimant 

MMDS on MMDS’ claim for breach of contract. 

2. MMDS breached the contract by its failure to prepare, 

maintain, and provide reports, records, ledger journals to [the 

Practice]. 

3. The law is with Lazzaro and against Weichman on his 

defamation and libel claims. 

IV. The Court now enters the following judgments in favor of 

Lazzaro, and [the Practice] and against [the Defendants]. 

A. [The Practice] has a judgment for breach of contract, 

conversion, and breach of fiduciary duties against MMDS and 

Weichman in the amount of $110,000.00 plus prejudgment 

interest from November 8, 1999 at 8% per year and judgment 

interest from the date of this Order at 8% per year. (The 

$110,000.00 encompasses treble damages for the act of 

conversion found by the Court). 
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B. Lazzaro has a judgment against Weichman, [Weichman & 

Associates], and [MMDS] for breach of fiduciary duties and 

conversion for $340,000.00 plus prejudgment interest from 

November 8, 1999 at 8% per year and judgment interest from the 

date of this Order at 8% per year. (The $340,000.00 encompasses 

treble damages for the acts of conversion found by the Court). 

C. Plaintiff’s claim for an accounting from [Weichman & 

Associates] and MMDS fails due to lack of documentation, 

records and reports what when or if they existed were in the 

exclusive control of Defendants. Thus the Court’s conclusion 

that there does not now exist enough facts and records for 

Defendants’ to realistically prepare a complete accounting for the 

individual and/or collective Plaintiffs. 

D. Plaintiff, Pabon did not prove his individual case by the 

greater weight of the evidence. 

E. Counter-Defendants; Lazzaro, Pabon, and [the Practice] 

receive judgment against Counter-claimants, Defendants, since 

Weichman, and MMDS failed to prove their Counterclaims by 

the greater weight of the evidence. 

Appellant’s App. pp. 28, 29-30, 32-33, 39-41 (record citations omitted). 

[21] Defendants argue on appeal that the trial court erred in (I) not dismissing 

certain of the Plaintiffs’ claims for failure to join indispensable parties, (II) 

concluding that MMDS breached the Agreement despite the Practice’s failure 

to comply with the conditions precedent of sending a notice of default and 

allowing an opportunity to cure, (III) entering judgment in favor of Dr. Lazzaro 

and the Practice on claims regarding the Blunt Ellis accounts, (IV) concluding 

that the Plaintiffs’ claims regarding the Blunt Ellis accounts were not timebarred, (V) awarding treble damages based on MMDS’s negligent handling of 

the Practice’s billing, and (VI) excluding certain evidence. 
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Discussion and Decision

Overall Standard of Review

[22] The trial court entered findings of fact and conclusions of law pursuant to 

Indiana Trial Rule 52. 

When a court has made special findings of fact, an appellate 

court reviews sufficiency of the evidence using a two-step 

process. “First, it must determine whether the evidence supports 

the trial court’s findings of fact; second, it must determine 

whether those findings of fact support the trial court’s 

conclusions of law.” Estate of Reasor v. Putnam County, 635 

N.E.2d 153, 158 (Ind. 1994) (citation omitted). Findings will 

only be set aside if they are clearly erroneous. Id. “Findings are 

clearly erroneous only when the record contains no facts to 

support them either directly or by inference.” Id. (citation 

omitted). A judgment is clearly erroneous if it applies the wrong 

legal standard to properly found facts. State v. Van Cleave, 674 

N.E.2d 1293, 1296 (Ind. 1996), reh’g granted in part, 681 N.E.2d 

181 (Ind. 1997). In order to determine that a finding or 

conclusion is clearly erroneous, an appellate court’s review of the 

evidence must leave it with the firm conviction that a mistake has 

been made. Id. at 1295. 

Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). It is well-settled, however, 

that “on appellate review the trial court’s judgment will be affirmed if 

sustainable on any theory or basis found in the record.” Havert v. Caldwell, 452 

N.E.2d 154, 157 (Ind. 1983). We review each of the Appellants’ claims with 

this proposition in mind. 

[23] As an initial matter, it is not entirely clear from the trial court’s order of 

judgment precisely how the trial court allocated damages between the various 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 20 of 34

defendants—Weichman, Weichman & Associates, and MMDS—or on what 

precise claims the damages were awarded: 

A. [The Practice] has a judgment for breach of contract, 

conversion, and breach of fiduciary duties against MMDS and 

Weichman in the amount of $110,000.00 plus prejudgment 

interest from November 8, 1999 at 8% per year and judgment 

interest from the date of this Order at 8% per year. (The 

$110,000.00 encompasses treble damages for the act of 

conversion found by the Court). 

B. Lazzaro has a judgment against Weichman, [Weichman & 

Associates], and [MMDS] for breach of fiduciary duties and 

conversion for $340,000.00 plus prejudgment interest from 

November 8, 1999 at 8% per year and judgment interest from the 

date of this Order at 8% per year. (The $340,000.00 encompasses 

treble damages for the acts of conversion found by the Court). 

Appellant’s App. pp. 40-41. 

[24] At least one aspect of the above must be set aside as unsupported by the record. 

To the extent that the trial court entered judgment against MMDS in favor of 

Dr. Lazzaro, that entry cannot be affirmed, as Dr. Lazzaro individually made 

no claim against MMDS. Evaluation of the trial court’s judgment, when 

considered together with the Plaintiffs’ actual claims, leads to the following 

inferences: (1) the trial court’s award of $110,000.00 to the Practice is a 

combination of damages resulting from MMDS’s breaches of the Agreement 

and/or damages arising from the Blunt Ellis account Weichman opened using 

Practice money, and (2) the trial court’s award of $340,000.00 to Dr. Lazzaro is 

a combination of damages resulting from Weichman’s unauthorized trading on 

the Blunt Ellis account and/or damages resulting from Weichman’s improper 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 21 of 34

or negligent handling of Investment Entity funds. It is also not possible to 

determine which portion of each award represents treble damages due to 

conversion, as both awards rest on multiple bases. 

I. Whether Dr. Lazzaro and the Practice Were Required 

to Name Additional Parties to Pursue Claims for Breach 

of Fiduciary Duties 

[25] Weichman and Weichman & Associates contend that Dr. Lazzaro and the 

Practice failed to bring in all of the necessary parties in their claim for breach of 

fiduciary duties with respect to the Investment Entities, namely, the Investment 

Entities themselves. Dr. Lazzaro and the Practice first argue that Weichman 

and Weichman & Associates did not renew their motion for judgment on the 

evidence at the conclusion of their case and have therefore waived this 

argument for appellate review. We agree. “We have held that when a 

defendant moves for a judgment on the evidence and then introduces evidence 

on his own behalf after the motion is denied, the defendant has waived any 

alleged error regarding the denial of the motion.” Hartford Steam Boiler 

Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1134 (Ind. Ct. App. 2002), trans. 

denied; see also Ind. Trial Rule 50(A)(6) (“A motion for judgment on the 

evidence made at one stage of the proceedings is not a waiver of the right of the 

court or of any party to make such motion on the same or different issues or 

reasons at a later stage as permitted above, except that error of the court in 

denying the motion shall be deemed corrected by evidence thereafter offered or 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 22 of 34

admitted.”). Weichman and Weichman & Associates have waived this issue 

for appellate review. 

[26] In any event, because the merits of this claim are easily disposed of, we elect to 

address them. As Weichman and Weichman & Associates point out, the 

precise question of whether an entity from which an accounting is sought must 

be a party has not been squarely addressed in Indiana, but relies on the Court of 

Appeal of Louisiana’s holding that “[i]t is our opinion that the orderly 

liquidation and settlement of a partnership requires that the partnership itself, in 

addition to the members thereof be made a party to the proceedings.” Quarles v. 

Albritton, 116 So. 2d 175, 178 (La. Ct. App. 1959). While this seems a sensible 

enough rule, the facts of this case do not require us to adopt or reject it. While 

the Plaintiffs did, indeed, seek an accounting from the various Investment 

Entities, such an accounting was not done. As previously mentioned, the trial 

court concluded that the state of available records made an accounting by any 

of the Investment Entities impossible. Because no accountings were actually 

done, any error in not requiring the Investment Entities to be joined as parties 

can only be considered harmless. “An error is harmless if it does not affect the 

substantial rights of the parties.” Bonnes v. Feldner, 642 N.E.2d 217, 219 (Ind. 

1994) (citing Ind. Trial Rule 61). 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 23 of 34

II. Whether Plaintiffs’ Alleged Failure to Send a Notice 

of Default or Extend an Opportunity to Cure to MMDS 

Necessitates Dismissal of their Breach of Contract Claim

[27] “The first rule in the interpretation of contracts is to give meaning and effect to 

the intention of the parties as expressed in the language of the contract.” Stech 

v. Panel Mart, Inc., 434 N.E.2d 97, 100 (Ind. Ct. App. 1982). “In ascertaining 

the intention of the parties, a court must construe the instrument as a whole, 

giving effect to every portion, if possible.” Id. “In interpreting an unambiguous 

contract, a court gives effect to the parties’ intentions as expressed in the four 

corners of the instrument, and clear, plain, and unambiguous terms are 

conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 

1142 (citing Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. 

Wayne, Inc., 683 N.E.2d 243, 247 (Ind. Ct. App. 1997)). “Courts may not 

construe clear and unambiguous provisions, nor may it add provisions not 

agreed upon by the parties.” Id. (Ind. Ct. App. 2003) (citing Hyperbaric Oxygen 

Therapy Sys., 683 N.E.2d at 247-48). However, it is well-settled that “[i]f the 

terms of a written contract are ambiguous, it is the responsibility of the trier-offact to ascertain the facts necessary to construe the contract.” Newnam Mfg., Inc. 

v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind. Ct. App. 2007). “A contract is 

ambiguous only if reasonable persons would differ as to the meaning of its 

terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam v. Wausau Ins. Co., 

765 N.E.2d 524, 528 (Ind. 2002)). 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 24 of 34

A. Breach

[28] MMDS argues that the Practice’s failure to send it a notice of default or give it 

an opportunity to cure any default rendered the Practice’s September 1, 1999, 

termination of the Agreement ineffective. The Practice counters that MMDS 

violated Section 6 of the Agreement, thereby entitling the Practice to terminate 

the Agreement without providing MMDS with notice of default or affording it 

an opportunity to cure. MMDS responds to the Practice’s contention by

arguing that there is no trial court finding that the Practice violated Section 6 of 

the Agreement and, in any event, nothing in the record that would support such 

a finding. We conclude that MMDS is correct on this point. 

[29] As previously mentioned, only a violation of Section 6 of the Agreement by 

either party allows the other party the right of immediate termination without 

opportunity to cure. The Practice points to evidence that MMDS’s improper 

coding resulted in delays in payment and nonpayment to the Practice and 

contends that those violations of the Agreement constituted unauthorized 

disclosures of the Practice’s proprietary or confidential information. 

Consequently, the Practice argues, MMDS violated Section 6, which allowed 

the Practice to terminate the Agreement immediately without affording an 

opportunity to cure. We do not see, and the Practice does not explain, how 

improper billing constitutes an unauthorized disclosure of confidential 

information. 

[30] The Practice also argues that MMDS’s failure to maintain and provide to the 

Practice master files and accounts-receivable journals violated Section 6’s 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 25 of 34

requirement that “all data of Client delivered to and developed by MMDS is 

and shall remain the sole and exclusive property of the Client[.]” Appellant’s 

App. p. 55. As with its previous Section 6 argument, the Practice fails to 

explain, and we do not see, how a failure to turn over and provide proper 

record following the Practice’s termination of the Agreement, without more, 

constituted a violation of Section 6. Consequently, without a Section 6 

violation, the Practice could not avail itself of the Agreement’s language 

allowing termination based on an alleged default without opportunity to cure. 

[31] In any event, the Practice did not allege a default in its notice of termination; it 

seems apparent that the Practice was attempting, at least, to terminate pursuant 

to Section 10(a)(i), which provided for termination “[a]t the end of the initial 

term or of any renewal term of this Agreement, upon delivery of written notice 

by either party not less than sixty (60) days prior to the expiration date of any 

such initial renewal term[.]” Appellant’s App. p. 58. This provision does not, 

however, allow for termination sixty days from the notice but only at the end of 

the next renewal term. Therefore, the Practice’s July 1, 1999, notice was 

sufficient to establish a termination date of April 30, 2000, not September 1, 

1999. The trial court’s conclusion that MMDS failed to establish a breach by 

the Practice is clearly erroneous. 

B. Effect of the Practice’s Breach of the Agreement

[32] Having concluded that MMDS established a breach of the Agreement by the 

Practice, we must now determine the relief. MMDS contends that the 

Practice’s breach of contract claim must be dismissed entirely because of its 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 26 of 34

improper termination of the Agreement. The Practice does not respond to this 

argument, resting on its argument that its termination of the Agreement was 

proper. Despite the Practice’s failure to specifically respond to MMDS’s 

argument, we cannot accept that the proper remedy is dismissal of the 

Practice’s claim against MMDS. 

[33] Although the issue does not appear to have been squarely addressed in Indiana 

for quite some time, it seems clear that when one party sues for breach of 

contract and the other countersues for breach of the same contact, the proper 

remedy when both parties are found to have breached is a set-off of the parties’

respective damages. In Houston v. Young, 7 Ind. 200 (1855), Houston leased a 

farm to Young with the stipulation “that Young should put the farming land, 

estimated to contain one hundred and thirty acres, in corn.” Id. at 200. 

The ground was to be properly prepared and in good season; the 

fallen timber cleared off; the fences righted up; and every thing 

done in a farmer-like manner. The corn was to be plowed at least 

three times, and the house, barn and orchards properly cared for.

Houston and others, on their part, were to maintain the plaintiffs 

in the possession of the premises, so long as they continued to 

fulfill the contract; grant them certain privileges necessary to its 

proper enjoyment; and at the close of the period of tending the 

crop, release them from any further care thereof; and pay them 3 

dollars per acre for the cultivation of the corn. The rails for 

repairs were also to be hauled by Houston and others, the 

defendants below.

Id. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 27 of 34

[34] Young eventually brought suit, alleging that Houston and others failed to pay 

the agreed-upon three dollars per acre and requested $420.00 in damages. Id. 

The defendants answered, alleging 

1. That the plaintiffs had failed to cultivate, &c., in good season, 

in a proper manner, &c., laying their damages, by reason of such 

negligence, at 400 dollars.

2. The second paragraph alleges a failure to perform in relation 

to clearing off the timber and repairing the fences, &c., laying 

their damages in this regard at 200 dollars.

3. The third paragraph alleges a payment of 246 dollars and 81 

cents on the contract.

Id. 

[35] Following entry of judgment in favor of Young for $70.00, Houston appealed, 

essentially arguing that the trial court “did not allow the defendants a sufficient 

amount in damages by way of recoupment.” Id. at 201. The Indiana Supreme 

Court reversed, holding as follows:

That the defendants were entitled to recoupment, can not be 

doubted. Recoupment will be allowed whenever an action for 

damages can be sustained and thus circuity of action avoided. 

Clark v. Wildridge, 5 Ind. 176. For the careless and unfarmerlike 

manner of cultivation disclosed in the evidence, Houston and 

others could have maintained an action for damages. They were, 

therefore, entitled to recoup. And Courts will favor recoupment 

rather than to drive the party to a separate action.

Id. at 202. 

[36] The principle enunciated in Houston—that claims by both parties alleging 

breach of the same agreement can be disposed of in the same suit—remains 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 28 of 34

good law. Consequently, we remand with instructions for trial on the question 

of MMDS’s damages resulting from the Practice’s improper termination of the 

Agreement, any amount found to be set off against the Practice’s damages 

resulting from MMDS’s breaches. 

III. Whether Judgment in the Plaintiffs’ Favor for 

Claims Regarding the Blunt Ellis Accounts Is Supported 

by Sufficient Evidence

[37] Weichman and Weichman & Associates contend that insufficient evidence 

supports the trial court’s judgment to the extent that it concluded that 

Weichman and Weichman & Associates converted money that was deposited 

in the Blunt Ellis accounts. As previously mentioned, we will not set aside the 

judgment of the trial court unless it is clearly erroneous. “We will not reweigh 

the evidence nor reassess the credibility of the witnesses before the court.” 

Speed v. Old Fort Supply Co., 737 N.E.2d 1217, 1219 (Ind. Ct. App. 2000). 

“Rather, we will affirm if there is sufficient evidence of probative value to 

support the decision, viewing the evidence most favorable to the judgment and 

the reasonable inferences drawn therefrom.” Id. 

[38] Although both Dr. Lazzaro personally and the Practice had claims against 

Weichman regarding Blunt Ellis accounts, the Defendants’ argument is limited 

to whether sufficient evidence was presented to support a finding that 

Weichman converted Practice funds that were deposited in its Blunt Ellis 

account. We conclude that the Practice presented sufficient evidence to support 

such a conclusion. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 29 of 34

[39] Patricia testified that the Practice’s Blunt Ellis account was discovered in 1999, 

records dating back to 1987 were eventually discovered, and that nobody 

associated with the Practice authorized the account. The Practice also 

presented evidence that between January of 1987 and July of 1992, 

$1,437,000.00 was deposited in the Practice’s Blunt Ellis account while 

$1,387,000.00 was withdrawn, resulting in losses of approximately 

$1,300,000.00. The vast majority of the money withdrawn from the Practice’s 

Blunt Ellis account was taken out the day it was deposited or the day after. 

Among the transactions was a 1990 check written by Weichman from the 

Practice’s Blunt Ellis account to Broadmoor for $70,000.00. The payment was 

authorized by neither Dr. Lazzaro nor Dr. Pabon, and there does not seem to 

have been a legitimate business reason for the transfer, as the Practice never 

invested in Broadmoor. 

[40] At the very least, the $70,000.00 transfer from the Practice’s Blunt Ellis account 

to Broadmoor, an Investment Entity controlled by Weichman, raises a 

reasonable inference of conversion. “Conversion, as a tort, consists either in 

the appropriation of the personal property of another to the party’s own use and 

benefit, or in its destruction, or in exercising dominion over it, in exclusion and 

defiance of the rights of the owner or lawful possessor, or in withholding it from 

his possession, under a claim and title inconsistent with the owner’s.”

Computers Unlimited, Inc. v. Midwest Data Sys., Inc., 657 N.E.2d 165, 171 (Ind. Ct. 

App. 1995) (citing Shank Fireproof Warehouse Co. v. Harlan, 108 Ind. App. 592, 

29 N.E.2d 1003 (1940)). We conclude that a reasonable fact-finder could find 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 30 of 34

that the unauthorized transfer of the Practice’s funds from an unauthorized 

account to an Investment Entity controlled by Weichman amounts to the 

appropriation of the Practice’s property for personal use. This conversion by 

itself, when trebled, is more than sufficient to account for the $110,000.00 

judgment entered in favor of the Practice. Weichman and Weichman & 

Associates have failed to establish that the trial court’s judgment, to the extent 

that it involves the Blunt Ellis account, is unsupported by sufficient evidence. 

IV. Whether the Plaintiffs’ Claims Regarding the Blunt 

Ellis Accounts Are Barred by the Statute of Limitations

[41] The Defendants contend that all claims based on Blunt Ellis accounts are barred 

by the statute of limitations, which provides as follows: 

The following actions must be commenced within six (6) years 

after the cause of action accrues:

(1) Actions on accounts and contracts not in writing.

(2) Actions for use, rents, and profits of real property.

(3) Actions for injuries to property other than personal property, 

damages for detention of personal property and for recovering 

possession of personal property.

(4) Actions for relief against frauds.

Ind. Code § 34-11-2-7. 

[42] The Plaintiffs, inter alia, note that the Defendants failed to assert a statute of 

limitations defense in their responsive pleading and argue that they have 

therefore waived it. It is well-settled that “Indiana Trial Rule 8(C) requires 

parties to plead some affirmative defenses ... or forfeit them.” Bunch v. State, 
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778 N.E.2d 1285, 1287 (Ind. 2002). A statute of limitations defense is one of 

the affirmative defenses mentioned in Trial Rule 8(C): “A responsive pleading 

shall set forth affirmatively and carry the burden of proving: ... statute of 

limitations[.]” Because Defendants failed to assert a statute of limitations 

defense in their responsive pleadings, they may not now raise it on appeal. See 

Sloan v. Town Council of Town of Patoka, 932 N.E.2d 1259, 1260 (Ind. Ct. App. 

2010) (“At no time did the Town of Patoka raise the affirmative defense in 

Sloan’s inverse condemnation cause. Therefore, we find that the Town waived 

its Statute of Limitations claim.”). 

V. Whether the Trial Court Properly Awarded Treble 

Damages to Plaintiffs for MMDS’s Negligent Handling 

of the Practice’s Billing

[43] MMDS contends that the trial court erred in awarding treble damages based on 

MMDS’s negligent handling of the Practice’s billing. Indiana Code section 34-

24-3-1 provides as follows:

If a person has an unpaid claim on a liability that is covered by 

IC 24-4.6-5 or suffers a pecuniary loss as a result of a violation of 

IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9, the person 

may bring a civil action against the person who caused the loss 

for the following:

(1) An amount not to exceed three (3) times:

(A) the actual damages of the person suffering the loss, in the 

case of a liability that is not covered by IC 24-4.6-5; or

(B) the total pump price of the motor fuel received, in the case of 

a liability that is covered by IC 24-4.6-5.
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 32 of 34

(2) The costs of the action.

(3) A reasonable attorney’s fee.

[44] As previously mentioned, it is not possible to precisely determine which portion 

of the trial court’s award to the Practice was based on misconduct by 

Weichman and/or Weichman & Associates and which portion was based on 

MMDS’s breach of the Agreement. However, as we have previously 

concluded, the Practice presented evidence of a $70,000.00 conversion by 

Weichman, more than sufficient by itself to support the trial court’s $110,000.00 

judgment in favor of the Practice. Any possible error the trial court may have 

made in awarding treble damages based on MMDS’s conduct can only be 

considered harmless. “An error is harmless if it does not affect the substantial 

rights of the parties.” Bonnes, 642 N.E.2d 219 (citing Ind. Trial Rule 61). 

VI. Whether the Trial Court Abused its Discretion in 

Excluding Certain Blunt Ellis Documents

[45] Defendants contend that the trial court abused its discretion in excluding 

certain documents proffered during trial, documents pertaining to Blunt Ellis 

accounts which, according to Defendants, contradict Dr. Lazzaro’s claims of 

ignorance about the accounts. Pursuant to Trial Rule 37(B)(2)(b), failure to 

comply with a discovery order allows the trial court, inter alia, to issue “[a]n 

order refusing to allow the disobedient party to support or oppose designated 

claims or defenses, or prohibiting him from introducing designated matters in 

evidence[.]” 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 33 of 34

The grant or denial of motions for discovery, motions for 

sanctions, and motions for a continuance rests in the sound 

discretion of the trial court, and will be reversed only for an abuse 

of that discretion. Keesling v. Baker & Daniels (1991), Ind. App., 

571 N.E.2d 562, 566, trans. denied (discovery); Nesses v. Specialty 

Connectors Co., Inc. (1990), Ind. App., 564 N.E.2d 322, 327 

(sanctions); Danner v. Danner (1991), Ind. App., 573 N.E.2d 934, 

937, trans. denied (continuance). An abuse of discretion occurs 

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

the facts of the case. Terre Haute Regional Hospital, Inc. v. 

Trueblood (1991), Ind. App., 579 N.E.2d 1342, 1345, reh’g denied.

Hudgins v. McAtee, 596 N.E.2d 286, 289 (Ind. Ct. App. 1992). 

[46] In light of the circumstances of the attempted introduction of the documents in 

question and the Defendants’ history of discovery abuses in this case, we cannot 

say that the trial court abused its discretion in this regard. Defendants did not 

attempt to introduce the Blunt Ellis documents until May 3, 2010, after trial had 

begun and over ten years after Plaintiffs originally filed suit. As the trial court 

noted, the failure to discover the material violated discovery orders entered on 

December 12, 2006, and June 5, 2007. Moreover, the Defendants had 

demonstrated a history of discovery abuses, some of which had previously 

resulted in sanctions. Discovery disputes and delays resulted in the imposition 

of sanctions on Defendants in 2002. Depositions had to be delayed due to the 

Defendants’ lack of document production. The trial court entered sanctions 

against Defendants again in 2005, and awarded attorney’s fees of $14,057.50 to 

Plaintiffs in 2007. In light of the Defendants’ failure to comply with longstanding discovery orders and their history of discovery abuses, we cannot say 

that the trial court abused its discretion in this regard. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1403-PL-81 | April 13, 2015 Page 34 of 34

Conclusion

[47] We conclude that the trial court correctly refused to dismiss Plaintiffs’ claims 

related to the Investment Entities for failure to join indispensable parties, 

entered judgment in favor of Dr. Lazzaro and the Practice on claims regarding 

the Blunt Ellis accounts, and excluded the evidence of Blunt Ellis accounts 

proffered at trial. We further conclude that the Defendants waived any statute 

of limitations defense they might have had to allegations related to the Blunt 

Ellis accounts and that any error the trial court might have made imposing 

treble damages for MMDS’s breach of the Agreement is harmless. Finally, we 

conclude that the trial court erred in dismissing MMDS’s breach of contract 

claim against the Practice and remand for trial on the question of damages only. 

[48] The judgment of the trial court is affirmed in part and reversed in part, and we 

remand with instructions. 

Najam, J., and Mathias, J., concur.