S & B Construction, LLC v. Old Fort, LLC

826 N.E.2d 32, 2005 Ind. App. LEXIS 658, 2005 WL 941253

• Court: Indiana Court of Appeals
• Decided: April 25, 2005
• Docket: 02A05-0401-CV-55
• Status: Published

Opinions

OPINION

KIRSCH, Chief Judge.

S & B Construction, LLC, Greystone Architects, Inc., Gloyd Concrete, and J-D Realty, LLP (collectively, the “lienhold-ers”) bring this interlocutory appeal from the entry of partial judgment in favor of Neal Harding* Lawrence Shapin, Maurice John, Jr., Robert Knox (collectively, “Old Fort’s members”), Old Fort, LLC, and Branch Banking & Trust Co. (the “Bank”). Specifically, the lienholders raise the following dispositive and restated issue: whether the trial court erred in concluding that judicial estoppel did not apply to this case.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In August 1998, Oldenberg Brewing Company (“Oldenberg”) acquired the right to purchase real estate in Fort Wayne, Indiana. Three months later, Oldenberg assigned its right to purchase the real estate to Old Fort. Old Fort, in turn, agreed to purchase the real estate and to contemporaneously lease it back to Olden-berg pursuant to a fifteen-year commercial lease agreement. Under the terms of the lease agreement, Oldenberg agreed to build a brewpub/restaurant on the real estate and to pay rent to Old Fort. Olden-berg also agreed to finance Old Fort’s purchase of the real estate by loaning Old Fort $233,630 and by guaranteeing an additional $450,000 loan from the Bank. The $233,630 loan was evidenced by a promissory note (the “Note”) executed by Old Fort as the maker and with Old Fort’s members as guarantors. The Note was also secured by a first mortgage against the real estate (the “Oldenberg Mortgage”), which was recorded on November 16,1998.

Oldenberg initially took steps to have the restaurant constructed as required by the terms of the lease, hiring Greystone Architects as the architect to prepare the plans and specifications for the project. Oldenberg also hired Sv& B as the general contractor to build the brewpub. S <& B, in turn, hired Gloyd and O’Neal Excavating, Inc. as subcontractors. After Grey-stone, S & B, Gloyd, J-D, and O’Neal had begun providing services, labor, and materials, Oldenberg became insolvent. Appellants’ Brief at 8. The project was abandoned, and Oldenberg ultimately filed for bankruptcy.

In 1999, S & B, Greystone, Gloyd, J-D, and O’Neal all timely filed mechanic’s liens against the real estate. Then, after obtaining relief from the automatic stay in Oldenberg’s bankruptcy case, S & B and Greystone filed this action to foreclose their mechanic’s liens on May 31, 2000. S & B subsequently paid O’Neal and took an assignment of O’Neal’s mechanic’s lien rights and claims. Oldenberg initially filed for reorganization under Chapter 11 of the Bankruptcy Code. However, the case was converted to a Chapter 7 liquidation proceeding, and the court appointed a bankruptcy trustee. At that time, Oldenberg’s rights under the Oldenberg Mortgage passed to the bankruptcy trustee, Charles J. Freihofer (the “Trustee”). Counsel for Old Fort sent a letter to the Trustee’s counsel asserting that Old Fort had setoffs and claims against the amounts it owed to Oldenberg based on Oldenberg’s breach of the lease and proposing that the Trustee accept $50,000 from Old Fort’.s members in exchange for the assignment to them of the Oldenberg Mortgage. In reliance on the representations in the letter, the Trustee agreed to sell the Oldenberg Mortgage to Old Fort’s members for $50,000.

Pursuant to their agreement, the Trustee and Old Fort filed with the bankruptcy court a Joint Motion for Sale of Assets Pursuant to 11 U.S.C. § 363 (the “sale motion”) requesting an order approving the sale and assignment of the Note and Oldenberg Mortgage to Old Fort’s members for $50,000. In the sale motion, Old Fort again stated that there were significant and meritorious setoffs and claims against the amounts owed to Oldenberg by Old Fort that rendered the agreed price significantly higher than what could be obtained through enforcement of the Ol-denberg Mortgage.' Old Fort further agreed to subordinate in the bankruptcy any claim it may have against Oldenberg and that if the real estate could be sold, any sale proceeds exceeding .the cost of sale, mortgages, and filed mechanic’s liens would be evenly split with the Trustee. On February 9, 2001, the bankruptcy court granted the sale motion. Old Fort’s members therefore paid the Trustee $50,000, and the Trustee assigned both the Note and Oldenberg Mortgage to Old Fort’s members on March 29, 2001.

In the trial court, S & B, Greystone, Gloyd, and J-D all filed motions for summary judgment, alleging that the Olden-berg Mortgage was only entitled to priority over their mechanic’s liens in an amount not exceeding $50,000. The trial court ordered that Old Fort’s members be substituted for Oldenberg as purchasers of the Oldenberg Mortgage from the Trustee. Old Fort’s members then filed to recover from Old Fort the entire $233,630 principal balance of the Oldenberg Mortgage plus default interest and late fees. Additionally, Old Fort’s members sought recovery of attorney fees incurred to foreclose the Ol-denberg Mortgage. S & B and Greystone filed a response, asserting as an affirmative defense that the claims of Old Fort’s members were barred by the equitable doctrine of judicial estoppel. Thereafter, the trial court held the summary judgment hearing and denied the motions with a one-sentence order that did not explain its reasoning.

Following an unsuccessful mediation, the case went to trial on September 9, 2003, on only two issues: the defense of judicial estoppel and the amount due and owing on the Oldenberg Mortgage, including whether the Note’s terms concerning default interest and late fees were unenforceable as penalties. Terms of the Note provided for both the imposition of an eighteen percent per annum default interest rate and a five percent per month late fee, which together totaled approximately $3.57 million.

On December 30, 2003, the trial court entered its findings of fact and conclusions thereon, finding that the sale motion granted by the bankruptcy court, pursuant to which the Note and Oldenberg Mortgage were sold and assigned to Old Fort’s members, “compromised the claims that Old Fort [had] against Oldenberg.” Appellants’ Appendix at 58. The trial court concluded that judicial estoppel was inapplicable to this case and that Old Fort’s members were entitled to default interest and late fees pursuant to the terms of the Note. The trial court entered partial judgment in favor of Old Fort’s members for the entire $233,630 principal amount plus accrued interest and late fees totaling $3,809,123.09 and ordered that the real estate be sold once the trial court determined the amount of the parties’ reasonable costs, expenses, and attorney fees. The lienholders now appeal.

DISCUSSION AND DECISION

When, as here, the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), we utilize a two-tiered standard of review. Weiss v. Harper, 803 N.E.2d 201, 204-05 (Ind.Ct.App.2003). First, we determine whether the evidence supports the trial court’s findings, and then whether the findings support the judgment. Id. at 205. Special findings are adequate to support the judgment only if they disclose a valid basis for the legal result reached by the trial court. Indiana Family & Soc. Servs. Admin. v. Amhealth (Evansville), Inc., 790 N.E.2d 162, 165 (Ind.Ct.App.2003).

We will not disturb the trial court’s findings or judgment unless they are clearly erroneous. Weiss, 803 N.E.2d at 205. Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We will neither reweigh evidence nor judge the credibility of witnesses, but will consider only the evidence favorable t.o the judgment and all reasonable inferences to be drawn therefrom. Id.

The lienholders first argue that the trial court erred in concluding that judicial estoppel does not apply to this case. Specifically, the lienholders contend that because Old Fort’s members successfully had the Note and Oldenberg Mortgage assigned to them for $50,000 by alleging various setoffs in the bankruptcy proceedings, they are now judicially estopped from recovering a judgment in excess of $3.8 million without acknowledging those set-offs.

Judicial estoppel protects the essential integrity of the judicial process by preventing a party and its counsel from “playing fast and loose” with the courts. GEICO Ins. Co. v. Rowell, 705 N.E.2d 476, 481 (Ind.Ct.App.1999). A party may not assert a position in a legal proceeding inconsistent with one previously asserted. Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234 (Ind.Ct.App.2004).

It is the general rule that allegations or admissions in pleadings in a former action or proceeding will ordinarily estop the party making them from denying their truth in a subsequent action or proceeding in which he is a party to the prejudice of his opponent where the usual elements of estoppel by conduct are present. Also, there must have been a determination of the prior action, or, at least, the allegations or admission must have been acted on by the court in which the pleadings were filed or by the parties claiming the estoppel.

Id. at 234-35 (quoting Tobin v. McClellan, 225 Ind. 335, 346-47, 73 N.E.2d 679, 684 (1947)).

As indicated by a letter from Peter L. Quebbeman to Paul Vesper (the Trustee’s counsel), Quebbeman and his law firm (Berg & Jones, PLLC) were “co-counsel” with Mark Sandlin for both Old Fort, LLC and Old Fort’s members. Plaintiffs Exhibits, Vol. Ill, Exhibit 31. Within that letter were descriptions of the setoffs and claims against the amounts owed by Old Fort under the Note, most significantly, damages from Oldenberg’s breach of their lease agreement. In reliance on this letter, the Trustee filed a joint sale motion with counsel for Old Fort seeking an order approving the transfer of the Note and Oldenberg Mortgage to Old Fort’s members in return for $50,000. Appellants’ Appendix at 225. The motion stated that “the Trustee and Old Fort believe ... that the agreed price for the Note and Mortgage is the best possible price to be obtained and is significantly higher than that which would be obtained either through an enforcement of the Note and Mortgage by the Trustee or other liquidation.” Id. at 228-29. The motion then specifically mentioned the “significant and meritorious set-offs and claims against the amounts owed to the Debtor [Oldenberg] by Old Fort” as the reason for approving the proposed sale. Id. at 229. The information included in the motion was quite clearly relied upon by the bankruptcy court in its order approving the sale of the Note and Olden-berg Mortgage to Old Fort’s members when it stated that “There is a significant risk of the estate not obtaining the price called for herein if the property were to be liquidated by the Trustee in that the property is subject to large and potentially meritorious claims constituting setoffs to any amount sought by the Trustee.... ” Id. at 256.

Identity of parties is not necessary for the application of judicial estoppel. See Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 238 (Ind.Ct.App.1998). Although it was Old Fort, and not its members, which made the above representations to the bankruptcy court, the identity of interests between the two is such that Old, Fort, LLC and Old Fort’s members are essentially one and the same. In Bartle v. Health Quest Realty VII, 768 N.E.2d 912 (Ind.Ct.App.2002), we held that the guarantor of a lessee’s rent obligation was collaterally estopped from relitigating the bankruptcy court’s determination of the amount due for breach of the lease because the guarantor and the lessee were “essentially one entity.” Id. at 921. Although Bartle was decided in the context of 'collateral, not judicial, estoppel, the principles upon which it was decided are instructive here! In that case, the lessor entered into four leases with Delmar. Bartle, the ninety-nine percent limited partner of Delmar and majority shareholder of Delmar’s one percent limited partner and general partner, Burlington, personally guaranteed the leases. Delmar defaulted on’ the leases and filed for bankruptcy. The lessor filed suit against Bartle as the guarantor, seeking judgment for the full amount owed by Delmar. ‘ Bartle was present for the entirety of and testified at the bankruptcy proceeding. The bankruptcy court determined the obligations owed by Delmar to the lessor and entered an order on Delmar’s stipulation regarding Delmar’s liability for the lessor’s attorney fees and expenses. The lessor then sought summary judgment in its action against Bartle, alleging that all factual issues had been resolved in the bankruptcy court. The trial court granted the lessor’s motion for summary judgment and Bartle appealed. In holding that the lessor was entitled to use offensive collateral estoppel to preclude Bartle from relitigating his obligations as guarantor of the leases, we noted that Bartle was in privity with Delmar and had an incentive to litigate the issue of liability before the bankruptcy court because Delmar’s liability was his liability. Id. at 921. We specifically noted Bartle’s near-sole ownership of the company involved in the bankruptcy proceedings and that during the bankruptcy proceedings, Bartle was not only present but “was kept up-to-date by Delmar’s counsel and made all of the strategic decisions on behalf of the entity.” Id.

Bartle also quoted the following language from the Restatement (Second) of Judgments:

The judgment in an action by or against the [closely held] corporation is conclusive upon the holder of its ownership if he actively participated in the action on behalf of the corporation, unless his interests and those of the corporation are so different that he should have opportunity to relitigate the issue.

Id. at 919 (quoting Restatement (Second) of Judgments § 59(3)). Comment to that section provides:

For the purpose of affording opportunity for a day in court on issues contested in litigation, however, there is no good reason why a closely held corporation and its owners should be ordinarily regarded as legally distinct. On the contrary, it may be presumed that their interests coincide and that one opportunity to litigate issues that concern them in common should sufficiently protect both.

Restatement (Second) of Judgments, § 59 cmt e.

Here, Quebbeman and Sandlin were co-eounsel representing both Old Fort and Old Fort’s members. It can thus be presumed that Old Fort and Old Fort’s members’ interests coincided in the matters for which Quebbeman and Sandlin undertook representation. The dissent notes that no case has applied judicial estoppel “to preclude one party from asserting a particular position because a different party had made a conflicting assertion or argument in a prior proceeding.” Op. at 39. However, we do not believe under these circumstances that Old Fort and Old Fort’s members are, in fact, different parties. Because the bankruptcy court relied upon Old Fort’s allegations in making its decision to sell the assets, Old Fort’s members cannot now deny those allegations or claim otherwise in this proceeding. Therefore, the trial court erred in awarding Old Fort’s members the entire principal amount of $233,630, plus interest and late fees.

We find that the trial court erred in finding that judicial estoppel does not apply in this case. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

ROBB, J., concurs. BAKER, J., concurs in part and dissents in part with separate opinion.