Seema Kapoor Shiv Kapoor Performance Support Consulting, LLC Matt Judson and Regional Construction Services, Inc. v. Steve Dybwad Cronin Insurance Services, Inc. Mark Light

• Court: Indiana Court of Appeals
• Decided: December 15, 2015
• Docket: 49A04-1410-CT-492
• Status: Published

Opinion

Dec 15 2015, 7:11 am

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE STEVE Karl L. Mulvaney DYBWAD Joshua J. Burress Brian P. Nally Bingham Greenebaum Doll LLP Martin T. Galvin Indianapolis, Indiana Reminger Co., L.P.A. Laura Richards Sherry Cleveland, Ohio The Harris Firm ATTORNEYS FOR APPELLEES CRONIN Dallas, Texas INSURANCE SERVICES, INC., AND THE ASSOCIATION OF SMALL, CLOSELY- HELD BUSINESS ENTERPRISES Connie M. Anderson Lewis Brisbois Bisgaard & Smith LLP Los Angeles, California Kari H. Halbrook Lewis Brisbois Bisgaard & Smith LLP Chicago, Illinois ATTORNEYS FOR APPELLEE GREENWALT CPAS, INC., F/K/A GREENWALT SPONSEL & CO. Michael E. Brown Crystal G. Rowe Kightlinger & Gray, LLP Indianapolis, Indiana Thomas F. Falkenberg Williams, Montgomery & John Chicago, Illinois ATTORNEYS FOR APPELLEE JONIGIAN & FOX, INC., D/B/A FOX & FOX Scott B. Cockrum Patrick Devine Hinshaw & Culbertson LLP Schererville, Indiana

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 1 of 54 James Harbert Hinshaw & Culbertson LLP Chicago, Illinois ATTORNEY FOR APPELLEE MARK LIGHT Paul D. Vink Bose McKinney & Evans LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE WASHINGTON TRUST BANK Michael A. Maurer, pro hac vice Lukins & Annis, P.S. Spokane, Washington Steven E. Runyan Kroger Gardis & Regas, LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE WESTERN RESERVE LIFE ASSURANCE CO. OF OHIO John R. Carr, III Michael R. Franceschini Thomas B. Bricker Ayers Carr & Sullivan, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Seema Kapoor; Shiv Kapoor; December 15, 2015 Performance Support Court of Appeals Cause No. Consulting, LLC; Matt Judson; 49A04-1410-CT-492 and Regional Construction Appeal from the Marion Superior Services, Inc., Court The Honorable John F. Hanley, Appellants/Plaintiffs, Judge v. Cause No. 49D11-1309-CT-35196

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 2 of 54 Steve Dybwad; Cronin Insurance Services, Inc.; Mark Light; Greenwalt CPAs, Inc., f/k/a Greenwalt Sponsel & Co.; Association of Small, Closely- Held Business Enterprises; Washington Trust Bank; Jonigian & Fox, Inc., d/b/a Fox & Fox; and Western Reserve Life Assurance Co. of Ohio, Appellees/Defendants.

Bradford, Judge.

Case Summary 1

[1] Appellants/Plaintiffs Seema Kapoor; Shiv Kapoor; Performance Consulting;

LLC (collectively, “the Kapoor Plaintiffs”); Matt Judson; and Regional

Construction Services, Inc. (collectively, “the Judson Plaintiffs”), appeal from

the trial court’s grant of a motion to dismiss in favor of Appellees/Defendants

Steve Dybwad; Cronin Insurance Services, Inc.(“CIS”); Mark Light; Greenwalt

CPAs, Inc., f/k/a Greenwalt Sponsel & Co. (“Greenwalt”); Association of

Small, Closely-Held Business Enterprises (“ASBE”); Washington Trust Bank

(“WTB”); Jonigian & Fox, Inc., d/b/a Fox & Fox (“Fox & Fox”); and

1 We held oral argument in this case on November 5, 2015. We would like to commend counsel for the high quality of their preparation and oral advocacy.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 3 of 54 Western Reserve Life Assurance Co. of Ohio (“WRL”). Defendants fulfilled

various roles in assisting Plaintiffs to establish welfare benefit programs for the

employees of their companies, programs which involved the purchase of cash

value life insurance policies. These plans were initially known as the Cronin

Insured Secured Program (“Cronin ISP Plan”) and, later, the Cronin Group

Term Life Insurance Program (“Cronin GTLP Plan”). For several years,

Plaintiffs made premium payments and deducted the contributions on their tax

returns.

[2] In 2012 and 2013, the Plaintiffs received deficiency notices from the IRS,

indicating that it had disallowed the deductions taken for contributions to the

Cronin ISP and GTLP Plans. As a result, Plaintiffs incurred costs for back

taxes, penalties, and interest. All Defendants were sued by various Plaintiffs

(the Kapoor Plaintiffs, the Judson Plaintiffs, or all Plaintiffs) for fraud, fraud by

omission, negligent misrepresentation, negligence, unjust enrichment, money

had and received, and constructive fraud. The trial court granted Defendants’

motion to dismiss for failure to state a claim under which relief may be granted.

[3] On appeal, Plaintiffs argue that (1) Defendants’ alleged misrepresentations are

actionable as a matter of law, (2) Plaintiffs’ fraud allegations were pled with

requisite specificity, (3) Defendants had a duty to Plaintiffs, (4) the economic

loss doctrine does not bar their negligence claim against Fox & Fox, (5)

Plaintiffs were not required to attach certain “writings” in order to sustain a

cause of action against Fox & Fox, (6) the trial court erred in dismissing the

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 4 of 54 Judson Plaintiffs’ fraud claim against WRL, and (7) the trial court erred in

dismissing the Judson Plaintiffs’ negligence claim against Greenwalt.

[4] CIS and ASBE contend that (1) Plaintiffs do not have a viable cause of action

because it is inherently unreasonable to rely on predictions regarding future tax

consequences and (2) Plaintiffs’ fraud claims were not pled with sufficient

specificity. Greenwalt argues that the Judson Plaintiffs’ (1) negligence claims

against them are time-barred, (2) fraud claims were not pled with sufficient

specificity, and (3) the constructive fraud claim did not allege the necessary

unconscionable advantage. Fox & Fox contends that (1) allegations of fraud

against it fail to state a claim, (2) fraud claims were not pled with sufficient

specificity, (3) the constructive fraud claim was properly dismissed due to a lack

of duty, and (4) the negligence claim was properly dismissed pursuant to the

economic loss doctrine and for a lack of duty. WTB contends that (1)

Washington state law governs its relationships with various Plaintiffs, (2) it had

no legal duty to provide tax or financial advice to Plaintiffs and (3) any claims

based on a breach of duty must therefore fail. WRL contends that (1) the

Judson Plaintiffs’ fraud allegations were not pled with sufficient specificity and

(2) the Judson Plaintiffs pled no facts supporting a material misrepresentation.

Light contends that all of the Judson Plaintiffs’ claims against him fail as a

matter of law. Because we conclude that the trial court erred in dismissing

several fraud, constructive fraud, and negligence claims against various

defendants, we reverse the judgment of the trial court in part and remand for

further proceedings.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 5 of 54 Facts and Procedural History I. Background—Section 419(e) Plans [5] Generally, Title 26, Section 419 of the United States Code provides for the

establishment of “welfare benefit funds” by employers for employees, with

employer contributions deductible under certain circumstances. Section 419(e)

defines the term “welfare benefit fund” as “any fund … which is part of a plan

of an employer, and … through which the employer provides welfare benefits to

employees or their beneficiaries.” “The amount of the deduction allowable …

for any taxable year shall not exceed the welfare benefit fund’s qualified cost for

the taxable year.” 26 U.S.C § 419(b).

[6] As far back as 1995, the Internal Revenue Service announced its position

concerning some arrangements purporting to comply with Section 419, stating

that such arrangements involving welfare benefit funds that invested in variable

life or universal life insurance contracts on the lives of the employees did not

provide the deductions claimed by their promoters. The IRS, inter alia, took the

position that arrangements that invested in variable life for universal life

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 6 of 54 contracts may actually be providing deferred compensation, which would not

provide for the same tax-deduction opportunities for the employer.2

[7] In late 2007, the IRS issued Notices 2007-83 and 2007-84 and Revenue Ruling

2007-65. Notice 2007-83 was entitled “Abusive Trust Arrangements Utilizing

Cash Value Life Insurance Policies Purportedly to Provide Welfare Benefits”

and informed taxpayers that “the tax benefits claimed for these arrangements

are not allowable for federal tax purposes.” Appellant’s App. p. 926. Notice

2007-83 also indicated that the IRS intended to challenge the claimed tax

benefits related to premiums for cash value life insurance policies. Inter alia,

Notice 2007-84 indicated the IRS’s intention to challenge “purported welfare

plans that, in form, provide post-retirement medical and life insurance to

employees on a non-discriminatory basis, but that, in operation, will primarily

benefit the owners or other key employees of the businesses.” Appellant’s App.

p. 934. Revenue Ruling 2007-65 indicated that “if the benefit provided through

the fund is life insurance coverage, premiums paid on cash value life insurance

policies by the fund are not included in the fund’s qualified direct cost whenever

2 Title 26, Section 162 of the United States Code limits business deductions to expenses that are ordinary and necessary. The deductibility of life insurance expenses has been interpreted to be limited to the cost of term life insurance acquired for a legitimate business reason. See, e.g., V.R. Deangelis M.D.P.C. v. C.I.R., 94 T.C.M. (CCH) 526 (T.C. 2007) (“While employers are not generally prohibited from funding term life insurance for their employees and deducting the premiums on that insurance as a business expense under section 162(a), employees are not allowed to disguise their investments in life insurance as deductible benefit-plan expenses when those investments accumulate cash value for the employees personally.”).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 7 of 54 the fund is directly or indirectly a beneficiary under the policy” and are

therefore not deductible. Appellant’s App. p. 950.

II. The Defendants [8] Lawrence Cronin was an insurance broker who operated CIS. Cronin

developed the Cronin ISP Plan and, later, the Cronin GTLP Plan. The Cronin

ISP Plan was purportedly set up in compliance with Section 419(e), while the

Cronin GTLP Plan was purportedly set up in compliance with U.S. Tax Code

Sections 79 and 83. All Plaintiffs bring claims against CIS.

[9] Fox & Fox operated as a third-party administrator of the Cronin ISP and GTLP

Plans. Fox & Fox collected money from the Plaintiffs for investment in the

Plans and administrative fees, and their invoices instructed the Plaintiffs

regarding how much money to deduct as “qualified costs” on their tax returns.

All Plaintiffs bring claims against Fox & Fox.

[10] WTB was trustee for the Cronin ISP Plans. WTB acquired a security interest in

each policy’s proceeds and required covered employees to execute assignments.

WTB became the beneficiary of the policies and, in the event of a covered

employee’s death, collected policy proceeds and disburse them pursuant to

Cronin ISP documents. WTB collected money from Plaintiffs, which it then

used to pay the premiums for the policies on the lives of the Plaintiffs. WTB

received administrative fees for its role in administering the Cronin ISP Plans.

All Plaintiffs bring claims against WTB.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 8 of 54 [11] ASBE, successor to the Science and Technology Council of Maryland

(“SATCOM”), purportedly acted as “trustee” for the Cronin GTLP Plans.

ASBE collected money from plan participants, deposited that money into its

bank accounts, and then made payments to the various insurance providers for

the premiums on the life insurance policies. ASBE received payment for these

services. All Plaintiffs bring claims against ASBE.

[12] WRL devised the insurance policies to be used in the Judson Plaintiffs’ plans.

WRL provided its agents, including Cronin and Light, with illustrations and

other marketing materials. WRL paid Cronin and Light commissions. Only

the Judson Plaintiffs bring claims against WRL.

[13] Dybwad was the Kapoor Plaintiffs’ financial and insurance advisor who had

serviced their needs since 1999. Only the Kapoor Plaintiffs bring claims against

Dybwad.

[14] Light was the Judson Plaintiffs’ financial advisor who had served in that

capacity since 2002. During the third quarter of 2008, the Judson Plaintiffs

retained Greenwalt as their financial and tax advisor. Greenwalt provided tax

advice to the Judson Plaintiffs from 2008 through 2012. Only the Judson

Plaintiffs bring claims against Light and Greenwalt.

III. The GTLP Plan [15] In December of 2007, Cronin created the Cronin GTLP Plan, which he

marketed as a Section 79/83 plan. Although the Cronin GTLP Plan purports

not to be a welfare benefit plan pursuant to Section 419(e), the language of the Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 9 of 54 plan document is “virtually identical” to that of the Cronin ISP plan document.

Appellant’s App. p. 973. One of the few differences between the Cronin ISP

Plan and the Cronin GTLP Plan is that the word “Trust” in the former has

been replaced with “Association” in the latter. Appellant’s App. p. 973.

Shortly after the publication of IRS Notice 2007-83, approximately 139

employees covered by the Cronin ISP Plan were rolled over into the Cronin

GTLP Plan.

IV. The Kapoor Plaintiffs [16] Seema and Shiv Kapoor operate Performance Support Consulting, LLC, in

Indiana. In late 2006, Dybwad approached the Kapoor Plaintiffs to solicit their

participation in the Cronin ISP Plan. Dybwad told the Kapoors that the Cronin

ISP Plan was an IRS-approved plan that would provide more insurance for

them and allow them to take a full deduction for their contributions. Dybwad

also represented to the Kapoors that the Cronin ISP Plan had a guaranteed rate

of return of between 5% and 15%, their principal investment would be

protected, the plan was a legitimate retirement plan, and they could access their

money at any time through tax-free loans.

[17] The Kapoor Plaintiffs invested $100,000.00 in the Cronin ISP Plan in 2006 and

took the corresponding tax deduction. In 2007, after the IRS issued its notices

regarding Section 419(e) plans, Dybwad, in conjunction with Fox & Fox,

transferred the Kapoor Plaintiffs to the Cronin GTLP Plan. Dybwad allegedly

told the Kapoors that there had been changes in IRS regulations and that the

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 10 of 54 transfer was necessary to ensure compliance. Dybwad allegedly also told the

Kapoors that contributions to the Cronin GTLP Plan were tax-deductible, they

would see a guaranteed return on their investment, and they would still have

access to loans from the policies. The Kapoors made further investments in

2007, 2008, 2009, 2010, and 2011 of $100,000.00 per year in the Cronin GTLP

Plan, taking the corresponding tax deductions for every year except 2011.

[18] On May 18, 2012, the Kapoors received a deficiency notice from the IRS, in

which the IRS notified the Kapoor Plaintiffs that it had disallowed the tax

deductions they had taken for contributions to the Cronin ISP and GTLP

Plans. After negotiations with the IRS, the Kapoor Plaintiffs agreed to pay

back taxes of $75,715.27, accuracy-related penalties of $24,073.67, and interest

of $9623.84 for 2007-2010. Additionally, the IRS assessed 6707A penalties

against the Kapoors individually of $41,232.00 and against Performance

Support of $40,000.00. The Kapoor Plaintiffs bring claims against CIS, ASBE,

Dybwad, WTB, and Fox & Fox.

V. The Judson Plaintiffs [19] Judson is presumably married to Jackie Judson and operates Regional

Construction Services, Inc. (“RCS”), incorporated in Indiana in April of 2002.

In 2002, the Judson Plaintiffs engaged Light to be their financial advisor. In

October or November of 2004, Light approached the Judson Plaintiffs to solicit

their participation in the Cronin ISP Plan. Light allegedly told the Judson

Plaintiffs that the Cronin ISP Plan was designed to benefit RCS’s long-term

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 11 of 54 employees and help retain them. As part of the Cronin ISP Plan, the Judson

Plaintiffs deposited money into an “escrow account” to be used to pay the

annual insurance premiums. Appellant’s App. 861. Light allegedly told the

Judson Plaintiffs that the Cronin ISP Plan was in full compliance with IRS

regulations, the plan allowed investors to take a full deduction, their principal

investment was protected, and they could access the money after a few years via

tax-free loans.

[20] On December 21, 2004, the Judson Plaintiffs made a $30,000.00 contribution to

the Cronin ISP Plan, a contribution amount repeated in 2005 and 2006. From

2004 to 2006, the Judson Plaintiffs paid $8750.00 in administrative costs.

[21] In November of 2006, Light approached the Judson Plaintiffs about amending

the Cronin ISP Plan. After Light allegedly told the Judson Plaintiffs that they

would need to obtain a second life insurance policy on Matt Judson, the Judson

Plaintiffs contributed an additional $30,000.00 in 2006. Also in December of

2006, the Judson Plaintiffs contributed $310,000.00 to WTB to be held in the

escrow account. Also in 2006, the Judson Plaintiffs paid $2075.00 in

administrative costs.

[22] In October of 2008, Light contacted the Judson Plaintiffs to discuss their Cronin

ISP Plan, allegedly telling them that they needed to transfer to the Cronin

GTLP Plan. Light allegedly told the Judson Plaintiffs that the Cronin GTLP

Plan was IRS-approved, they could take deductions for their contributions, and

they would still see a guaranteed return on their investment. The Judson

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 12 of 54 Plaintiffs paid a $300.00 termination fee to WTB and made contributions to the

Cronin GTLP of $60,000.00 in 2008 and $27,000.00 in each of 2009, 2010, and

2011 and paid approximately $4625.00 in administrative costs to ASBE and

Fox & Fox.

[23] In March of 2013, the Judson Plaintiffs received a deficiency notice from the

IRS. The IRS had determined that the Cronin ISP and GTLP Plans were

noncompliant and that the Judson Plaintiffs were not entitled to take

deductions equal to the amount of their contributions. The Judson Plaintiffs

have been assessed the following: back taxes of $254,963.00, accuracy-related

penalties of $84,480.38, interest of $42,085.22, and 6707A penalties of

$30,000.00 against RCS and $60,624.00 against the Judson Plaintiffs

individually. The Judson Plaintiffs bring claims against CIS, Light, Greenwalt,

ASBE, WTB, and Fox & Fox.

VI. Procedural History [24] On September 13, 2013, the Plaintiffs filed their original complaint for

damages. Plaintiffs sued Defendants for fraud, fraud by omission, negligent

misrepresentation, negligence, unjust enrichment, money had and received, and

constructive fraud. Defendants filed motions to dismiss pursuant to Indiana

Trial Rule 12(B)(6), which motions the trial court granted on March 18, 2014.

On March 28, 2014, Plaintiffs filed their first amended complaint (“FAC”). All

defendants were sued by various Plaintiffs (the Kapoor Plaintiffs, the Judson

Plaintiffs, or all Plaintiffs) for fraud, fraud by omission, negligent

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 13 of 54 misrepresentation, negligence, unjust enrichment, money had and received, and

constructive fraud.

[25] Defendants Dybwad, ASBE, Greenwalt, WTB, Light, Fox & Fox and WRL

again filed motions to dismiss Plaintiffs FAC pursuant to Trial Rules 12(B)(6)

and 9(B). On August 26, 2014, after hearing argument on Defendants’ motions

to dismiss, the trial court granted the various motions without elaboration. On

September 24, 2014, the trial court ordered that its order granting Defendants’

motions to dismiss be made final and appealable.

VII. Claims on Appeal [26] Plaintiffs contend that the trial court erred in granting Defendants’ motion to

dismiss. Specifically, Plaintiffs argue that (1) Defendants’ alleged

misrepresentations are actionable as a matter of law, (2) Plaintiffs’ fraud

allegations were pled with the requisite specificity, (3) Defendants had a duty to

Plaintiffs, (4) the economic loss doctrine does not bar its negligence claim

against Fox & Fox, (5) Plaintiffs were not required to attach certain “writings”

in order to sustain a cause of action against Fox & Fox, (6) the trial court erred

in dismissing the Judson Plaintiffs’ fraud claim against WRL, and (7) the trial

court erred in dismissing the Judson Plaintiffs’ negligence claim against

Greenwalt.

[27] CIS and ASBE contend that (1) Plaintiffs do not have a viable cause of action

because it is inherently unreasonable to rely on predictions regarding future tax

consequences and (2) Plaintiffs’ fraud claims were not pled with sufficient

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 14 of 54 specificity. Greenwalt argues that the Judson Plaintiffs’ (1) negligence claims

against them are time-barred, (2) fraud claims were not pled with sufficient

specificity, and (3) constructive fraud claim did not allege the necessary

unconscionable advantage. Fox & Fox contends that (1) allegations of fraud

against it fail to state a claim, (2) fraud claims were not pled with sufficient

specificity, (3) the constructive fraud claim was properly dismissed due to a lack

of duty, and (4) the negligence claim was properly dismissed pursuant to the

economic loss doctrine and for a lack of duty. WTB contends that (1)

Washington state law governs its relationships with various Plaintiffs, (2) it had

no legal duty to provide tax or financial advice to Plaintiffs, and (3) any claims

based on a breach of duty must fail. WRL contends that (1) the Judson

Plaintiffs’ fraud allegations were not pled with sufficient specificity and (2) the

Judson Plaintiffs pled no facts supporting a material misrepresentation. Light

contends that all of the Judson Plaintiffs’ claims against him fail as a matter of

law.

Discussion and Decision Standard of review [28] Plaintiffs are appealing from the grant of several of the Defendants’ motions to

dismiss filed pursuant to Indiana Trial Rule 12(B)(6). “We review de novo the

trial court’s grant or denial of a motion based on Indiana Trial Rule 12(B)(6).”

Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)

(citing Babes Showclub v. Lair, 918 N.E.2d 308, 310 (Ind. 2009)).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 15 of 54 A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief. See Kitco, Inc. v. Corp. for Gen. Trade, 706 N.E.2d 581 (Ind. Ct. App. 1999). Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred.

A court should “accept[] as true the facts alleged in the complaint,” Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App. 1999), and should not only “consider the pleadings in the light most favorable to the plaintiff,” but also “draw every reasonable inference in favor of [the non-moving] party.” Newman v. Deiter, 702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998). However, a court need not accept as true “allegations that are contradicted by other allegations or exhibits attached to or incorporated in the pleading.” Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1271 (Ind. Ct. App. 2000) (citations omitted). Indiana Trial Rule 8(A), this state’s notice pleading provision, requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although the plaintiff need not set out in precise detail the facts upon which the claim is based, she must still plead the operative facts necessary to set forth an actionable claim. Miller v. Mem. Hosp. of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). Under notice pleading, we review the granting of a motion to dismiss for failure to state a claim under a stringent standard, and affirm the trial court’s grant of the motion only when it is “apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.” McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999).

Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134-35 (Ind. 2006).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 16 of 54 [29] Additionally, in the FAC, Plaintiffs made several claims of fraud by various

Defendants. Indiana Trial Rule 9(B) requires that “[i]n all averments of fraud

or mistake, the circumstances constituting fraud or mistake shall be specifically

averred.”

In order to allege fraud sufficiently, the pleadings must state the time, the place, the substance of the false representations, the facts misrepresented, and identification of what was procured by fraud. Rogers v. R.J. Reynolds Tobacco Co. (1990) Ind. App., 557 N.E.2d 1045, 1055, reh’g denied. The word “fraud” need not necessarily be alleged, if the facts alleged show either actual or constructive fraud. Employers Ins. of Wausau v. Commissioner of Dep’t of Ins. (1983) Ind. App., 452 N.E.2d 441, 447. A pleading which fails to comply with the special requirements of T.R. 9(B) does not state a claim upon which relief can be granted or a sufficient defense. Cunningham v. Associates Capital Serv. Corp. (1981) Ind. App., 421 N.E.2d 681, 683 n. 2.

Abbott v. Bates, 670 N.E.2d 916, 922 n.3 (Ind. Ct. App. 1996).

I. Whether Plaintiffs may Maintain Cause of Action Against Defendants for Actual Fraud or Constructive Fraud [30] Plaintiffs note that the main issues addressed in the FAC are those of actual

fraud and constructive fraud. The Plaintiffs contend that they may maintain

causes of action against all Defendants for actual fraud and constructive fraud.

Various Defendants argue (on various grounds) that Plaintiffs may not maintain

causes of action for actual fraud or constructive fraud against any of the

Defendants.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 17 of 54 A. Actual Fraud3 [31] The elements of actual fraud are: (i) material misrepresentation of past or existing facts by the party to be charged (ii) which was false (iii) which was made with knowledge or reckless ignorance of the falseness (iv) was relied upon by the complaining party and (v) proximately caused the complaining party injury.

Rice v. Strunk, 670 N.E.2d 1280, 1289 (Ind. 1996).

1. Whether it Is Unreasonable to Rely on Alleged Predictions of Future Tax Treatment

[32] CIS and ASBE argue that Plaintiffs failed to rebut their argument below that it

was inherently unreasonable to rely on any person’s prediction of the future tax

treatment of a welfare benefits plan. CIS and ASBE rely on Berry v. Indianapolis

Life Insurance Co., 600 F. Supp. 2d 805 (N.D. Texas 2009), which held as much.

Plaintiffs argue that (1) the Indiana case of Scott v Bodor, Inc., 571 N.E.2d 313

(Ind. Ct. App. 1991), holds that such statements can, in fact support a claim of

actual fraud and (2) Berry is distinguishable from the instant case in that

Defendants made various statements that were not merely predictive in nature.

3 Plaintiffs argue only that the trial court wrongfully dismissed their actual fraud claims against CIS, ASBE, Fox & Fox, WRL, Dybwad, and Light. On appeal, it is the appellants’ burden to formulate a cogent argument for the issues they raise. See Ind. Appellate Rule 46(A)(8)(a). Because Plaintiffs have not provided a cogent argument that their actual fraud claims against WTB and Greenwalt were wrongfully dismissed, we consider those claims to be abandoned.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 18 of 54 i. Berry

[33] In Berry, the plaintiffs were, in general, professional individuals and the

companies they operated who participated in certain defined-benefit plans that

were ostensibly designed and marketed by defendants as being compliant with

Title 26, Section 412 of the United States Code. Berry, 600 F. Supp. 2d at 807.

Various statements were made by defendants to plaintiffs regarding the plans,

including that

1. The life insurance policies were appropriate for use in funding the plan as a qualified 412(i) plan; 2. The life insurance policies provided a permissible death benefit under the plan; 3. The premiums to be paid for the policies qualified as federal income tax deductions; and 4. The plan and the insurance policies used to fund it complied with all federal tax laws and regulations. …. 1. That their defined benefit plans would be “a fully insured qualified plan under Section 412(i) of the Internal Revenue Code”; 2. That each defined benefit plan “satisfies each of the [ ] requirements” of Section 412(i); 3. That contributions to the defined benefit plans “are tax deductible to the business, and non-taxable to the participant”; 4. That each individual plaintiff could eventually “purchase the policy from the plan for its net case value” and “report the policy’s net cash value as the taxable income”; and 5. That the Consultant Defendants had “secured a letter opinion of ‘more likely than not’ from the international firm of Bryan Cave LLP” with respect to the viability of this arrangement.”

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 19 of 54 Id. at 809, 810. As is happened, by 2005 the IRS began nationwide audits

directed at 412(i) plans and had either commenced audits of plaintiffs or was

likely to when plaintiffs sued defendants under various theories, including

common law fraud. Id. at 810.

[34] The Berry court granted defendant Indianapolis Life’s motion to dismiss on the

ground that the plaintiffs failed to plead actual fraud with sufficient

particularity. Specifically, the court concluded that plaintiffs failed to allege

that various statements regarding the insurance plans at issue were false at the

time they were made. Id. at 817.

[35] Additionally, the Berry court concluded that

To the extent that Plaintiffs are alleging that any of the statements listed in paragraphs 78 and 86 are forward-looking or are opinions as to how the IRS would treat 412(i) plans at any time after Dr. Young and Mr. Berry funded their plans with Indianapolis Life insurance policies in 2001-02, the Court finds those opinions as to future events unactionable as the basis for a fraud claim under these circumstances. Each statement allegedly made by Mssrs. West and Hartstein is a statement regarding federal income tax law or policy, including the policies of a third party government agency-the IRS. As a matter of law, any representation or prediction by any alleged Indianapolis Life agent as to how the IRS would treat the 412(i) plans, and the funding thereof, in the future is either an unactionable opinion or was unjustifiably relied upon.

Id. at 819.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 20 of 54 ii. Scott

[36] In Scott, plaintiff Bodor, Inc., implemented a supplemental income plan

presented to it by defendants John Scott and Thomas Brown. 571 N.E.2d at

316. The plan was funded by the purchase of whole life insurance, and Scott

and Brown told Bodor employees that Bodor could deduct any contributions to

the plan and that funds could be retrieved as needed. Id. at 317. At some point,

Bodor discovered that the $370,000.00 it had invested in the plan was not, in

fact, tax deductible. Id. at 318.

[37] We ultimately concluded that “the defendants’ representations concerning

Bodor’s ability to retrieve funds from the plan were representations concerning

past or existing facts—the present features or terms of the proposed plan—and

not mere statements of opinion or promises of future action.” Id. at 320. We

further stated that

[h]ere, plaintiff produced evidence that defendants claimed the funds placed in the plan were tax deductible, that the funds were immediately recoverable, and that the plan was not primarily funded by life insurance. All these statements were misrepresentations as to the features of the plan at the time it was offered to the plaintiff.

Id. at 320-21 (emphasis added).

2. Analysis

[38] CIS and ASBE argue that any representations made regarding the Cronin Plans

by any defendant were no more than opinions as to how the IRS might treat the

Plans in the future and therefore unactionable pursuant to Berry. Plaintiffs

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 21 of 54 argue that several of the alleged representations are statements regarding

present features of the plans pursuant to Scott.

[39] In the end, we do not believe Berry’s approach to be persuasive enough to

convince us to depart from Scott’s approach. “[W]hile federal district court

decisions may be persuasive, they are not binding authority on state courts.”

Plaza Grp. Props., LLC v. Spencer Cnty. Plan Comm’n, 877 N.E.2d 877, 894 (Ind.

Ct. App. 2007), trans. denied. While we believe that the Berry court’s basic

reasoning is consistent with relevant Indiana law, we take issue with the court’s

characterization of some statements as merely predictive when they seem to us

to clearly be statements of existing or past fact. For example, statements such

as “[t]he premiums to be paid for the policies qualified as federal income tax

deductions [and t]he plan and the insurance policies used to fund it complied

with all federal tax laws and regulations” cannot be fairly described as

predictions; they are, quite simply, statements of purported fact. Berry, 600 F.

Supp. 2d at 809.

[40] We have little hesitation concluding that our approach in Scott is the better-

reasoned. From the perspective of the prospective investor, a statement such as

“contributions to this plan are tax-deductible” is a statement of fact rather than

a prediction regarding how the IRS will treat the plan in the future. With that

approach in mind, the following subsections detail the specific allegations made

against each Defendant in the FAC as they relate to a claim of actual fraud.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 22 of 54 i. Dybwad

[41] The Kapoor Plaintiffs alleged in the FAC that Dybwad told them in the last

quarter of 2006 the following regarding the Cronin ISP Plan: it would provide

them with more insurance than they had currently with an additional tax

savings, it was IRS-approved and allowed a full tax deduction for contributions,

it provided a guaranteed return, and their principal investment would always be

protected. These alleged representations all involve statements of past or

existing facts which do not involve any predictions about how the IRS would

treat the Cronin ISP Plan. In particular, the allegation that Dybwad told the

Kapoor Plaintiffs that the Cronin ISP Plan was IRS-approved strongly implies

that the IRS evaluated the Cronin ISP Plan and found it compliant. Moreover,

allegations that Dybwad claimed that the Cronin ISP was IRS-approved, when

he knew that it was not, clearly satisfy the requirement of a false statement of

past or existing fact. Under Scott, the Kapoor Plaintiffs have made allegations

that can support a claim of actual fraud.

ii. Light

[42] The Judson Plaintiffs alleged in the FAC that Light told them that (1) the

Cronin ISP Plan was in total compliance with all IRS regulations, (2) the plan

allowed investors to deduct the contribution amount, (3) their principal

investment was safe, (4) the plan was a legitimate retirement plan, and (5) they

could take tax-free loans from the Cronin ISP Plan at any time. Under Scott, all

of these alleged statements could support an actual fraud claim. In Scott, we

found similar statements about an investor’s ability to retrieve funds from an

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 23 of 54 insurance-funded plan to be “representations concerning past or existing facts—

the present features or terms of the proposed plan—and not mere statements of

opinion or promises of future action.” 571 N.E.2d at 320. The Judson

Plaintiffs have made allegations against Light that could support a claim of

actual fraud.

iii. WRL

[43] The Judson Plaintiffs allege in the FAC that WRL (1) received marketing

materials from Cronin along with documents demonstrating the IRS’s

unfavorable treatment of welfare benefit plans, (2) paid Cronin and Light

commissions on the sale of its life insurance products to the Judson Plaintiffs,

(3) knew that Cronin and Light sold its life insurance to fund the Cronin Plans,

(4) knew that Cronin and Light used their positions as their clients’ trusted

advisor to facilitate life insurance sales, and (5) provided Cronin and Light with

marketing materials showing how investments in the Cronin Plans were

expected to perform. None of the above involves statements made directly to

any of the Judson Plaintiffs, which precludes actual fraud claims by the Judson

Plaintiffs against WRL.

iv. Additional allegations against Light, Cronin, and ASBE

[44] The Judson Plaintiffs allege that (1) Light and Cronin advised them to deposit

money into an “escrow” account in the event they were able to make future

plan contributions; (2) the Judson Plaintiffs deposited a total of $415,510.00

into this account, which was originally held by Arrowhead Trust but was

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 24 of 54 transferred first to WTB and then ASBE; (3) the Judson Plaintiffs were

informed in 2013 by Cronin’s widow that the account had a balance of

$313,135.00, none of which has been returned to them. None of the above

allegations involve statements by the Defendants in question of past or existing

fact. Consequently, none of the additional allegations support a claim of actual

fraud against Light, Cronin (or CIS), or ASBE.

B. Constructive Fraud4 [45] Plaintiffs also contend that the trial court erred in dismissing their constructive

fraud claims, which, for the most part, are based on the Defendants’ alleged

failures to disclose the IRS’s position on welfare benefit plans involving cash-

value insurance policies.

The elements of constructive fraud are: (i) a duty owing by the party to be charged to the complaining party due to their relationship; (ii) violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists; (iii) reliance thereon by the complaining party; (iv) injury to the complaining party as a proximate result thereof; and (v) the gaining of an advantage by the party to be charged at the expense of the complaining party.

Rice, 670 N.E.2d at 1284.

4 Plaintiffs contend that the trial court wrongfully dismissed their constructive fraud claims against only WTB, ASBE, Dybwad, Light, CIS, Fox & Fox, and WRL. Because Plaintiffs have not provided a cogent argument that their constructive fraud claims against Greenwalt were wrongfully dismissed, we consider those claims to be abandoned. See App. R. 46(A)(8)(a).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 25 of 54 [46] “Constructive fraud is a breach of legal or equitable duty which, irrespective of

the moral guilt of the fraud feasor, the law declares fraudulent because of its

tendency to deceive others, to violate public or private confidence, or to injure

public interests.” Budd v. Bd. of Comm’rs of St. Joseph Cnty., 216 Ind. 35, 39, 22

N.E.2d 973, 975 (1939). “Neither actual dishonesty nor intent to deceive is an

essential element of constructive fraud. An intent to deceive is an essential

element of actual fraud. The presence or absence of such an intent

distinguishes actual fraud from constructive fraud.” Daly v. Showers, 104 Ind.

App. 480, 486, 8 N.E.2d 139, 142 (1937).

[47] Moreover, regarding constructive fraud claims,

It is well-settled that although an oral promise as to future conduct will not support an ordinary fraud action, such promise may form the basis of a constructive fraud action if it induces one to place himself in a worse position than he would have been in had no promise been made and if the party making the promise derives a benefit as a result of the promise.… …. The very essence of a constructive fraud action based on the existence of a fiduciary relationship is that one party places a special trust and confidence in a dominant party and, therefore, it is presumed that a transaction entered into during such a relationship is not an arms length transaction, wherein each party would be bound to closely examine the terms of the contract to protect his or her interests rather than relying on a fiduciary’s representations.

Strong v. Jackson, 777 N.E.2d 1141, 1149 (Ind. Ct. App. 2002), trans. denied.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 26 of 54 [48] Indiana courts have recognized that a constructive fraud claim may also arise

when the relationship between the parties is that of a buyer and seller.

However, the existence of a fiduciary relationship is not the only basis for a claim of constructive fraud. Rather, our courts have consistently held that a constructive fraud may also arise where the relationship between the parties is that of buyer and seller. Kirkpatrick v. Reeves (1889), 121 Ind. 280, 22 N.E. 139; Scott v. Bodor, Inc. (1991), Ind. App., 571 N.E.2d 313 (where a seller makes unqualified statements in order to induce another to make a purchase, the buyer relies on those statements, and the seller has professed knowledge of the truth of the statements, a constructive fraud occurs); Coffey v. Wininger (1973), 156 Ind. App. 233, 296 N.E.2d 154; Smart & Perry Ford Sales, Inc. v. Weaver (1971), 149 Ind. App. 693, 274 N.E.2d 718. The law recognizes that in a buyer-seller relationship one party may be in the unique possession of knowledge not possessed by the other and may thereby enjoy a position of superiority over the other. The relationship is therefore one which invokes a duty of good faith and fair dealing.

Mullen v. Cogdell, 643 N.E.2d 390, 401 (Ind. Ct. App. 1994) (footnote omitted).

1. Duty

[49] Plaintiffs argue that all Defendants had a duty to disclose material facts to

Plaintiffs. Light, CIS, ASBE, WTB, and Fox & Fox argue that Plaintiffs failed

to establish that they owed any such duty to Plaintiffs.

Confidential relationships as a matter of law include fiduciary relationships such as “attorney and client, guardian and ward, principal and agent, pastor and parishioner … [and] parent and child,” although this list is not exhaustive. [Callaway v. Callaway, 932 N.E.2d 215, 223 (Ind. Ct. App. 2010) (quoting Carlson v.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 27 of 54 Warren, 878 N.E.2d 844, 851 (Ind. Ct. App. 2007))]. In the alternative, a confidential relationship in fact may arise where the facts of a given case “show a relation of trust and confidence justifying one in relying thereon,” even where there is no legal presumption of such trust. Id. at 223-24 (quoting Carlson, 878 N.E.2d at 852). This Court has recognized that, while a “‘relationship of trust and confidence’ on the particular facts of the case has not been succinctly defined,” it exists “‘when confidence is reposed by one party in another with resulting superiority and influence exercised by the other.’” Id. at 225 (quoting [Kalwitz v. Estate of Kalwitz, 822 N.E.2d 274, 281 (Ind. Ct. App. 2005), trans. denied]).

McKibben v. Hughes, 23 N.E.3d 819, 827 (Ind. Ct. App. 2014), trans. denied.

i. WTB

[50] Plaintiffs contend that WTB had a duty to speak as “trustees” of the Plans.

WTB counters that (1) Washington state law governs its relationships with

Plaintiffs and (2) the relevant documents limit the duties it owed Plaintiffs. As

an initial matter, Plaintiffs argue that WTB has relied upon material that was

not included in the pleadings, therefore converting WTB’s motion to dismiss

into a motion for summary judgment:

when matters outside the pleadings are submitted in support of a TR. 12 motion for judgment on the pleadings, the motion “shall be treated” as a TR. 56 motion for summary judgment, with or without a motion by a party to that effect. In other words, the TR. 12 motion which is supported by matters outside the pleadings is automatically converted into a motion for summary judgment.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 28 of 54 Tanasijevich’s Estate v. City of Hammond, 383 N.E.2d 1081, 1083 (Ind. Ct. App.

1978).

[51] As WTB notes, the documents on which it bases its argument were attached to

the FAC by Plaintiffs. WTB also argues that the documents were central to

Plaintiffs’ claims. See Bd. of Comm’rs of Delaware Cty. v. Evans, 979 N.E.2d 1042,

1046 (Ind. Ct. App. 2012) (quoting Levenstein v. Salafsky, 164 F.3d 345, 347 (7th

Cir. 1998), for the proposition that “‘documents attached to a motion to dismiss

are considered part of the pleadings if they are referred to in the plaintiff’s

complaint and are central to his [or her] claim’”). While the documents in

question are certainly central to WTB’s defense, WTB does not explain, and we

do not see, how the attached documents were central to Plaintiffs’ claims

against WTB. Consequently, we shall treat WTB’s Rule 12(B)(6) motion to

dismiss Plaintiffs’ claims as though it had been a motion for summary

judgment.

[52] When reviewing the grant or denial of a summary judgment motion, we apply

the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar &

Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is

appropriate only where the evidence shows there is no genuine issue of material

fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind.

Trial Rule 56(C). All facts and reasonable inferences drawn from those facts

are construed in favor of the nonmoving party. Merchs. Nat’l Bank, 741 N.E.2d

at 386. To prevail on a motion for summary judgment, a party must

demonstrate that the undisputed material facts negate at least one element of

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 29 of 54 the other party’s claim. Id. Once the moving party has met this burden with a

prima facie showing, the burden shifts to the nonmoving party to establish that

a genuine issue does in fact exist. Id. The party appealing the summary

judgment bears the burden of persuading us that the trial court erred. Id.

[53] “Indiana choice-of-law provisions generally favor contractual stipulations as to

governing law.” Kentucky Nat. Ins. Co. v. Empire Fire & Marine Ins. Co., 919

N.E.2d 565, 575 (Ind. Ct. App. 2010). As WTB points out, both the Kapoor

Plaintiffs and Judson Plaintiffs contracted with WTB that Washington state law

was to govern all aspects of the relevant trusts and Plans. The Judson Trust

Agreement provided, in part, that “[t]his Trust Agreement shall be deemed to

be a binding Agreement and shall in all respects be construed and regulated by

the laws of the State of Washington except where such laws are superseded by

federal laws.” Appellant’s App. p. 1618. The Kapoor Trust Agreement

provided that “[e]xcept to the extent pre-empted by federal law, the provisions

of the Plan shall be interpreted in accordance with the Laws of the State of

Washington.” Appellant’s App. p. 1667. Pursuant to the terms of the relevant

trust instruments, WTB is correct that claims against it should be evaluated

under Washington law.

[54] Under Washington law,

A trustee’s power comes from the express provisions of the trust agreement. Monroe v. Winn, 16 Wash. 2d 497, 133 P.2d 952, 956 (1943). The trust document controls even if its terms conflict with statutory obligations. RCW 11.97.010. Where the instrument vests discretion in the trustee, the court will not

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 30 of 54 interfere with that discretion and only reviews for abuse of that discretion. Austin v. U.S. Bank of Wash., 73 Wash. App. 293, 869 P.2d 404, 410 (1994). A trustee abuses his or her discretion only when they act “arbitrarily, in bad faith, maliciously, or fraudulently.” Id.

Vaughn v. Montague, 924 F. Supp. 2d 1256, 1264 (W.D. Wash. 2013).

[55] Moreover, as the Washington Supreme Court has stated,

It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent. There is in the ordinary case no public policy which prevents the parties from contracting as they see fit, as to whether the plaintiff will undertake the responsibility of looking out for himself.

Wagenblast v. Odessa Sch. Dist. No. 105-157-166J, 758 P.2d 968, 970 (Wash. 1988).

[56] Both the Judson and Kapoor Trust Agreements, which were attached as

exhibits to WTB’s motion to dismiss and will therefore be treated as designated

evidence, contain the following provisions:

 “The adopting Employer understands and acknowledges that the Trustee is acting solely in the capacity of a nondiscretionary custodian of assets for the adopting Employer to the direction of the Contract Administrator.”

 “The Trustee undertakes to only such duties as are specifically set forth in this Trust Agreement and in the Plan, and no implied covenants or obligations shall be read into these documents against the Trustee.”

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 31 of 54 Appellant’s App. pp. 1603, 1615, 1630, 1641.

[57] Additionally, the designated fee agreements associated with the Trust

Agreements contain the following language: “IMPORTANT NOTICE:

Employer must have all legal, tax and financial aspects of the Plan reviewed by its

legal counsel and other professionals. [WTB] does not provide any legal, tax or

financial advice or opinions whatsoever concerning this Plan or any aspect thereof.”

Appellant’s App. pp. 1621, 1681 (emphases in originals).

[58] “Under Indiana law, a person is presumed to understand the documents which

he signs and cannot be released from the terms of a contract due to his failure to

read it.” Clanton v. United Skates of Am., 686 N.E.2d 896, 899-00 (Ind. Ct. App.

1997). The above provisions clearly absolve WTB of any duty to Plaintiffs to

provide tax, legal, or financial advice. Due to the lack of any duty to advise

Plaintiffs, entry of judgment in favor of WTB on Plaintiffs’ constructive fraud

claims is appropriate.

[59] Plaintiffs argue that because they have alleged that they were fraudulently

induced to sign the Trust Agreements, we must assume in this procedural

context that the Trust Agreements are void and without effect. “Fraudulent

inducement occurs when a party is induced through fraudulent

misrepresentations to enter into a contract.” Brumley v. Commonwealth Bus. Coll.

Educ. Corp., 945 N.E.2d 770, 776 (Ind. Ct. App. 2011) (citing Lightning Litho,

Inc. v. Danka Indus., Inc., 776 N.E.2d 1238, 1241 (Ind. Ct. App. 2002)). “‘If a

party’s manifestation of assent is induced by either a fraudulent or a material

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 32 of 54 misrepresentation by the other party upon which the recipient is justified in

relying, the contract is voidable by the recipient.’” Id. (quoting RESTATEMENT

(SECOND) OF CONTRACTS § 164(1) (1981)). As subsection § 164(2) and

associated comments and illustrations make clear, however, the standard to be

applied is different when the misrepresentations are made by one who is not a

party to the contract:

If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by one who is not a party to the transaction upon which the recipient is justified in relying, the contract is voidable by the recipient, unless the other party to the transaction in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction.

Id. § 164(2).

[60] Here, whatever the alleged misrepresentations were that might have induced

Plaintiffs to sign the Trust Agreements were not made by WTB, as Plaintiffs

have not alleged that WTB made any representations to them. In order to fall

under subsection § 164(2), Plaintiffs would have had to allege that WTB knew,

or had some reason to know, of material misrepresentations to Plaintiffs, which

they have not done. Plaintiffs’ reliance on the doctrine of fraudulent

inducement is unavailing.

ii. ASBE

[61] Plaintiffs argue that ASBE had a duty to speak to them but failed to do so,

thereby subjecting ASBE to a claim of constructive fraud. As alleged, however,

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 33 of 54 ASBE and Plaintiffs did not have the sort of relationship that would impose a

duty to disclose on ASBE. Plaintiffs allege only that ASBE (or its predecessor

SATCOM) received money from them and then made payments to various

insurance providers for premiums. These facts do not establish a fiduciary duty

on ASBE’s part. Additionally, there are no allegations that would tend to

establish a buyer-seller relationship between Plaintiffs and ASBE. Plaintiffs

have failed to allege facts that would support a constructive fraud claim against

ASBE.5

iii. Dybwad and Light

[62] Plaintiffs argue that Dybwad and Light owed a duty to Plaintiffs because they

were Plaintiffs’ fiduciaries. The Kapoor Plaintiffs note that Dybwad had served

their financial and insurance needs as far back as 1999, and the Judson

Plaintiffs note that Light began advising them in 2002, when he established

their 401(k) plan. Light notes that the general rule in Indiana is that “an

insurance agent or broker who undertakes to procure insurance for another is

an agent of the proposed insured, and owes the principal a duty to exercise

reasonable care, skill, and good faith diligence in obtaining the insurance.”

Craven v. State Farm Mut. Auto. Ins. Co., 588 N.E.2d 1294, 1296 (Ind. Ct. App.

1992) (citation omitted). “In this state, however, the agent’s duty extends to the

provision of advice only upon a showing of an intimate long term relationship

5 At oral argument, Plaintiffs claimed that ASBE was an “alter ego” of Cronin. A fair reading of the sections of the FAC cited to by Plaintiffs, however, does not support this assertion.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 34 of 54 between the parties or some other special circumstance.” Id. at 1297.

“[S]omething more than the standard insured-insurer relationship is required to

create a special relationship obligating the insurer to advise the insured about

coverage.” Am. Family Mut. Ins. Co. v. Dye, 634 N.E.2d 844, 848 (Ind. Ct. App.

1994), trans. denied. “[I]t is the nature of the relationship, not its length, that

invokes the duty to advise.” Id.

[63] The Judson Plaintiffs have alleged that Light was not a mere insurance agent

but, rather, their trusted financial advisor, advising them since 2002 and

establishing a 401(k) plan. The Judson Plaintiffs also allege that Light sold the

Cronin ISP Plan to them much more as an investment vehicle and a way to

retain valuable employees than as an insurance product. Given these

allegations, we conclude that Light should be treated more as a general

financial advisor than an insurance agent.

[64] The question for both Dybwad and Light, then, is whether a financial advisor in

their position has a fiduciary relationship with his advisees. “Where a

relationship of trust and confidence exists between parties, equity will act to

protect it and to prevent the party owing the duty from profiting by its breach.”

Peoples Trust Bank v. Braun, 443 N.E.2d 875, 879 (Ind. Ct. App. 1983).

Although the existence of a confidential relationship depends upon the facts of each case, it can be generally stated that a confidential relationship exists whenever confidence is reposed by one party in another with resulting superiority and influence exercised by the other. Shapiro v. Rubens, (7th Cir. 1948) 166 F.2d 659. Not only must there be confidence by one party in the

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 35 of 54 other, the party reposing the confidence must also be in a position of inequality, dependence, weakness, or lack of knowledge. Koenig v. Leas, [240 Ind. 449, 165 N.E.2d 134 (1959)]; Koehler v. Haller, (1915) 62 Ind. App. 8, 112 N.E. 527. Furthermore, it must be shown that the dominant party wrongfully abused this confidence by improperly influencing the weaker so as to obtain an unconscionable advantage. Westphal v. Heckman, (1966) 185 Ind. 88, 113 N.E. 299.

Hunter v. Hunter, 152 Ind. App. 365, 372, 283 N.E.2d 775, 779-80 (1972)

“Whether such relationship exists is essentially a question of fact.” Paulson v.

Centier Bank, 704 N.E.2d 482, 490 (Ind. Ct. App. 1998), trans. denied.

[65] We have little trouble concluding that the allegations in the FAC can support a

finding that Light had a fiduciary duty to the Judson Plaintiffs. As their alleged

financial advisor, Light would have been in a superior position, and the Judson

Plaintiffs might well be expected to have had confidence in his advice regarding

the Cronin ISP Plan. We reach the same conclusion about Dybwad’s

relationship with the Kapoor Plaintiffs. Dybwad had allegedly served the

Kapoor Plaintiffs since 1999 as their financial advisor, on whose advice the

Kapoor Plaintiffs acted to their detriment. The FAC contains allegations

concerning Light and Dybwad that, if true, could support a finding that they

had a fiduciary duty to Plaintiffs.

[66] Additionally, as alleged, the Judson Plaintiffs and Light and the Kapoor

Plaintiffs and Dybwad had buyer-seller relationships, which could also support

claims of constructive fraud. “Our courts previously have held that a

constructive fraud may arise in the absence of a confidential relationship where:

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 36 of 54 1) a seller makes unqualified statements in order to induce another to make a

purchase; 2) the buyer relies upon the statements; and 3) the seller has professed

to the buyer that he has knowledge of the truth of the statements.” Scott, 571

N.E.2d at 324. Both Light and Dybwad allegedly made unequivocal statements

regarding the Cronin Plans that induced the various Plaintiffs to invest in them.

Light’s and Dybwad’s belief in the knowledge of the truth of those alleged

statements was at least strongly implied. We conclude that Plaintiffs have

alleged facts that, if true, could support a claim of constructive fraud against

Light and Dybwad, on either the theory of breach of fiduciary duty or based on

a buyer-seller relationship.

iv. CIS, Fox & Fox, and WRL

[67] Plaintiffs argue that CIS, Fox & Fox, and WRL all had a duty to speak because

they all proclaimed “special knowledge” regarding the Cronin ISP and GTLP

Plans and were selling products and/or services to Plaintiffs. Plaintiffs also

argue that they were in a buyer-seller relationship with CIS, Fox & Fox, and

WRL, a relationship that can support a constructive fraud claim. Plaintiffs

argue that Cronin, by and through CIS, drafted the Plans and prepared all

documentation to implement the Plans and also prepared compilation of

documents entitled “Legal Resource Guide: Single Employer Welfare Benefit

Plans,” which included marketing materials, prior IRS notices, revenue rulings,

and tax court cases involving welfare benefit plans. Plaintiffs allege that Fox &

Fox marketed itself as specializing in serving the employee-benefit needs of the

small-to-medium employer, advertised that it offered consulting services related

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 37 of 54 to all facets of employee benefits, marketed its alleged credentials by claiming

that it was staffed with individuals who had worked in all facets of employee-

benefit administration, and boasted that it had taken the lead in implementing

innovative benefit programs.

[68] Plaintiffs argue that the facts of this case are similar enough to those in American

United Life Insurance Co. v. Douglas, 808 N.E.2d 690, 693 (Ind. Ct. App. 2004),

for that case’s holding to apply here. In Douglas,

The plaintiffs were employees of Computer Business Services, Inc. (“CBSI”). In 1994, representatives of CBSI and Edward Miller, who occasionally acted as a broker for [American United Life (“AUL”)] annuity and other financial products, met with Michael Schneider, AUL’s Manager for Group Sales, about establishing a retirement plan for CBSI employees. CBSI decided to fund a 401(k) plan using an AUL group annuity contract as recommended by AUL. In November 1994, many CBSI employees began directing portions of their salaries to the 401(k) plan.

CBSI’s 401(k) plan was terminated in 1997 when the company went bankrupt. AUL distributed the balance of the employees’ accounts to them, less an eight percent surrender penalty. The balances were less than employees had anticipated, and in investigating why, they discovered that the 401(k) plan was funded with an insurance product. Peter Douglas, Matthew Douglas, and Sharon Phillips then instituted a proposed class action lawsuit against AUL.

Id. at 693.

[69] We affirmed the trial court’s denial of AUL’s summary judgment motion which

AUL based on an alleged lack of duty: Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 38 of 54 In this case, AUL presented a “Group Retirement Plan Proposed Especially For [CBSI].” The first page of the proposal contains the following heading: “AUL—Retirement Savings Plan Specialists.” Appellee’s Appendix at 48. The proposal states that “AUL will add value to your retirement savings plan by— Tailoring your retirement savings plan to your needs.…” Id. at 49. The proposal notes that “AUL offers a comprehensive range of retirement savings plan services so that you will not have to be a retirement plan expert.… AUL pension consultants meet with prospective plan sponsors to tailor a retirement plan to meet each company’s needs and philosophy.” Id. at 54. Consultants assess “types of contributions that can be used to best achieve the desired plan results.” Id. AUL held itself out as a “specialist” in retirement savings plans and promised to tailor the plan to the individual needs of the investor by assessing the appropriate types of contributions. We do not have here the kind of affirmative statements made in Scott, but this case is based primarily on omissions made by AUL. CBSI representatives have alleged that they relied on AUL’s self-proclaimed expertise in choosing a retirement plan and believed that AUL’s recommendation was “categorically appropriate for 401(k) plan investing.” Affidavit of Andrew Douglas[], Appellee’s Appendix at 43. If they had known the true nature of the investment, CBSI representatives would not have funded the plan with a deferred annuity product. Id. at 44. AUL has the kind of superior knowledge of the subject which invokes a duty of good faith and fair dealing with the purchaser of its products, including the duty to disclose the nature of the investment especially when it knew that it was selling a product for placement in a 401(k) plan. AUL’s argument that it owed no duty to the plaintiffs must therefore fail.

Douglas, 808 N.E.2d at 702-03.

[70] We reach the same conclusion as the Douglas court. Plaintiffs have alleged that

Cronin, by and through CIS, prepared and distributed a “Legal Resource

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 39 of 54 Guide: Single Employer Welfare Benefit Plans” to various agents, including

WRL and Fox & Fox. The materials, inter alia, stated unequivocally that

employer contributions to the Plans designed by Cronin were tax-deductible

and provided what was purportedly legal authority for this proposition. Cronin

received compensation based on Plaintiffs’ participation in his Plans.

[71] Plaintiffs have also alleged that Fox & Fox marketed itself as specializing in

serving the employee-benefit needs of the small-to-medium employer,

advertised that it offered consulting services related to all facets of employee

benefits, marketed its alleged credentials by claiming that it was staffed with

individuals who had worked in all facets of employee-benefit administration,

and boasted that it had taken the lead in implementing innovative benefit

programs. Fox & Fox received compensation for services provided related to

Plaintiffs’ participation in the Plans.

[72] The Judson Plaintiffs have alleged that WRL reviewed the Cronin Plan

documents and the Legal Resource Guide before allowing its policies to be used

in the Plans, knew that its agents used positions of trust to facilitate sales of its

insurance products, and provided Light and Cronin with materials which were

used to explain to the Judson Plaintiffs how their investments would perform.

[73] Plaintiffs have alleged sufficient facts to support a conclusion that CIS, Fox &

Fox, and WRL were holding themselves out as experts in the field of employer

investment plans, or at the very least strongly implying as such. The marketing

materials allegedly prepared by CIS and relied upon by Fox & Fox and WRL

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 40 of 54 stated unequivocally that Plaintiffs’ contributions to the Cronin Plans would be

tax-deductible, representations relied upon by Plaintiffs. Plaintiffs have also

alleged that CIS, Fox & Fox, and WRL financially benefited from their

representations. The facts of this case cannot be distinguished from those of

Douglas. Plaintiffs may bring constructive fraud claims against CIS, Fox & Fox,

and WRL based on their alleged buyer-seller relationships.

III. Specificity of Pleading Fraud Claims [74] CIS and ASBE, Greenwalt, Fox & Fox, WRL, and Light contend that Plaintiffs

failed to plead their fraud-based claims against them with sufficient specificity.

As previously mentioned,

Indiana Trial Rule 9(B) states that all averments of fraud must be pled with specificity as to the “circumstances constituting fraud.” In order to meet this burden, the party alleging fraud must specifically allege the elements of fraud, the time, place, and substance of false reports, and any facts that were misrepresented, as well as the identity of what was procured by fraud. Continental Basketball Association, Inc. v. Ellenstein Enterprises, 669 N.E.2d 134, 138 (Ind. 1996). Failure to comply with the rule’s specificity requirements constitutes a failure to state a claim upon which relief may be granted; thus, any pleading which fails to satisfy the requirements fails to raise an issue of material fact. Cunningham v. Associates Capital Services Corp., 421 N.E.2d 681, 683 n.2 (Ind. Ct. App. 1981). These requirements are not limited to common law fraud but extend to all actions that “sound in fraud.” McKinney v. Indiana, 693 N.E.2d 65, 71 (Ind. 1998).

Payday Today, Inc. v. Hamilton, 911 N.E.2d 26, 33-34 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 41 of 54 [75] As the United States Court of Appeals for the Seventh Circuit has stated, “[i]t is

enough to show, in detail, the nature of the charge, so that vague and

unsubstantiated accusations of fraud do not lead to costly discovery and public

obloquy.” U.S. ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 854-55 (7th Cir.

2009). The Seventh Circuit has also noted that

[w]e have read this rule to require “describing the ‘who, what, when, where, and how’ of the fraud.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011). We have noted that the purpose of this particularity requirement is “to discourage a ‘sue first, ask questions later’ philosophy.” Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011). “Heightened pleading in the fraud context is required in part because of the potential stigmatic injury that comes with alleging fraud and the concomitant desire to ensure that such fraught allegations are not lightly leveled.” Id. at 442. We have also cautioned, however, that “the exact level of particularity that is required will necessarily differ based on the facts of the case.” Hofer, 649 F.3d at 615.

…. [W]hile we require a plaintiff claiming fraud to fill in a fairly specific picture of the allegations in her complaint, we “remain sensitive to information asymmetries that may prevent a plaintiff from offering more detail.” [Pirelli, 631 F.3d at 443].

Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 948 (7th Cir. 2013).

A. CIS [76] Plaintiffs alleged in the FAC that Cronin, through CIS, drafted the Plan

documents, the adoption agreements, and all other documentation related to

the Plans. Cronin also drafted and distributed the “Legal Resource Guide,” a

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 42 of 54 compilation of marketing materials and documents related to prior IRS notices,

revenue rulings, and tax court cases. Plaintiffs allege that the materials stated

that contributions were tax-deductible and also provided purported legal

authority for this proposition. Plaintiffs allege that Cronin distributed the

materials with the intent that they would be seen by potential participants in the

Cronin Plans and that they contained representations that employer

contributions were deductible under the Cronin ISP Plan and created no

taxable income for the employee. Plaintiffs also allege that they participated in

the Plans based on representations made by CIS and incurred expenses for back

taxes, penalties, and interest as a result. Cronin allegedly received

compensation based on Plaintiffs’ participation in his Plans.

1. Actual Fraud

[77] Plaintiffs have not alleged that CIS made any misrepresentations of existing or

past fact. In the absence of an alleged misrepresentation, Plaintiffs have not

pled an actual fraud claim against CIS, much less pled it with sufficient

specificity.

2. Constructive Fraud

[78] As previously mentioned, Plaintiffs have made allegations that may sustain a

constructive fraud claim against CIS, and we conclude that they pled such a

claim with sufficient specificity, detailed enough to support a claim based on a

buyer-seller relationship. Plaintiffs have made allegations regarding specific

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 43 of 54 representations made in marketing materials used by agents to induce them to

participate in the Cronin Plans to Plaintiffs’ detriment.

B. ASBE [79] As previously mentioned, Plaintiffs have not alleged facts sufficient to sustain

claims of fraud or constructive fraud against ASBE, much less with sufficient

C. Fox & Fox [80] Plaintiffs have alleged that, as early as 2004, Fox & Fox marketed itself as

specializing serving the employee-benefit needs of the small-to-medium

employers; offering consulting services related to employee benefits; and

administering qualified, non-qualified, and flexible compensation programs for

clients across the country. Plaintiffs have alleged that Fox & Fox marketed its

credentials on a website by claiming that it was staffed by individuals who have

worked in all facets of employee benefits consultation and administration.

[81] Plaintiffs have not alleged that Fox & Fox made any misrepresentations to

them directly. Consequently, Plaintiffs have failed to plead an actual fraud

claim against Fox & Fox, much less plead it with sufficient specificity.

[82] We have already concluded that Plaintiffs have alleged facts sufficient to find

that Fox & Fox had a seller-buyer relationship with them, one that could

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 44 of 54 support a constructive fraud claim. We further conclude that, under the

circumstances of this case, the constructive fraud claim against Fox & Fox has

been pled with sufficient specificity. Given the buyer-seller relationship that has

been pled, which included marketing materials viewed on a website, it is not

surprising that the “when” and “where” of Plaintiffs’ constructive fraud claim

are not pled with the same specificity that the affirmative misrepresentations in

an actual fraud claim would require.

D. WRL [83] The Judson Plaintiffs allege, essentially, that WRL, who issued the life

insurance policies at issue, allowed their agents Light and Cronin to market the

Plans. The Judson Plaintiffs also allege that WRL incurred independent

liability to them by reviewing marketing materials and Cronin ISP Plan

documents and failing to attempt to correct misrepresentations of Light and

Cronin. The Judson Plaintiffs also allege that WRL provided with Light and

Cronin with materials used to explain how their investments would perform.

[84] Again, Plaintiffs fail to allege that WRL made any direct misrepresentations to

them, meaning that their actual fraud claim has not been sufficiently pled,

much less with the required specificity.

[85] As with CIS and Fox & Fox, we conclude that the Judson Plaintiffs have pled

constructive fraud based on a buyer-seller with sufficient specificity. The

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 45 of 54 Judson Plaintiffs have alleged specifically which documents WRL received

from Cronin and reviewed and the specifics of the illustrations WRL provided

to Light and Cronin for marketing purposes, illustrations it reasonably would

have expected to be seen by prospective purchasers. The Judson Plaintiffs, not

being directly involved in these alleged events, can be forgiven for not pleading

them with more specificity.

E. Light [86] The Judson Plaintiffs have alleged that Light was not a mere insurance agent

but, rather, their trusted financial advisor, advising them since 2002 and

establishing a 401(k) plan. The Judson Plaintiffs also allege that Light sold the

Cronin ISP Plan to them much more as an investment vehicle and a way to

retain valuable employees than as an insurance product.

[87] The Judson Plaintiffs alleged that Light approached them in October or

November of 2004 and made several verbal representations regarding the

Cronin ISP Plan including telling them that it was in total compliance with IRS

regulations and they could take tax deductions for the amounts of their

contributions. Light allegedly touted the Cronin ISP Plan as a legitimate

retirement plan and assured the Judson Plaintiffs that their principle investment

would always be protected, their investment would grow at a minimum rate of

return, and they could access their money through tax-free loans. The Judson

Plaintiffs alleged that in reliance on these representations, they invested

$30,000.00 in each of 2004, 2005, and 2006, paid $8750.00 in administrative

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 46 of 54 fees; and made a $90,000.00 payment in December of 2004 to the trustee before

WTB.

[88] The Judson Plaintiffs also allege that Light approached them in November of

2006 about amending their Cronin ISP Plan to add an additional $400,000.00

in contributions. Light advised the Judsons that they would need second life

insurance policy to amend the Cronin ISP Plan, and the Judsons made a 2006

contribution of $30.000.00 to that end. The Judsons also contributed

$310,000.00 to WTB, contributed $60,000.00 to the Cronin ISP Plan in 2007,

paid $2075.00 in administrative fees, and took tax deductions for the years 2004

through 2007, as instructed by Cronin and Light.

[89] The Judson Plaintiffs also allege that Light contacted the Judsons in October of

2008 to discuss the Cronin ISP Plan and informed them that they would need

to transfer to the Cronin GTLP Plan. Light told the Judsons that the Cronin

GTLP Plan was IRS-approved that would still allow them tax deductions for

their contributions and would provide a guaranteed return. The Judsons

transitioned to the Cronin GTLP Plan; contributed $60,000.00 in 2008,

$27,000.00 in 2009, $27,000.00 in 2010, and $27,000.00 in 2011; paid

approximately $4625.00 in administrative fees; and took corresponding tax

deductions for 2008 through 2010.

[90] The Judson Plaintiffs allege that they were fraudulently induced to execute the

Plan documents by Light’s representations. The allegations made are

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 47 of 54 sufficiently specific to satisfy the specificity requirements for pleading actual

fraud. Although the Judson Plaintiffs have not alleged ultra-specific times or

places for Light’s various statements to them, it is worth keeping in mind that

some of the alleged statements were made over ten years ago. Under the

circumstances, the Judsons can be forgiven for not recalling whether a certain

statement was made in their living room or kitchen on October 13 or 15. That

said, the Judson Plaintiffs have alleged several specific statements regarding the

Cronin ISP and GTLP Plans, which they also allege were false, upon which

they relied to their detriment. This is sufficient to satisfy the particularity

requirement of Trial Rule 9(B).

[91] We further conclude that the Judson Plaintiffs have alleged constructive fraud

against Light with sufficient specificity. The Judson Plaintiffs have alleged that

Light had been their financial advisor since 2002 and had set up their 401(k)

plan. We note that the heart of the constructive fraud claim which is based on a

fiduciary duty is non-disclosure, which is not an event that can be pled with

specificity. It is therefore sufficient simply to plead that the disclosure did not

occur.

F. Dybwad [92] The Kapoor Plaintiffs alleged that Dybwad approached them in the last quarter

of 2006 and told them that the Cronin ISP Plan was IRS-approved, would

provide more insurance than they currently had, and would allow a full

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 48 of 54 deduction for contributions. Dybwad also allegedly told the Kapoor Plaintiffs

that the Cronin ISP Plan provided a guaranteed rate of return of 5% to 15%,

their principal was protected, the Cronin ISP Plan was a legitimate retirement

plan, and they could access their money at any time through tax-free loans.

The Kapoor Plaintiffs also alleged that Dybwad later represented that the

Cronin GTLP Plan would afford all of the benefits of the ISP Plan. The

Kapoor Plaintiffs alleged that as a result of these representations, they invested

a total of $600,000.00 in the Cronin ISP and GTLP Plans, taking tax

deductions for $500,000.00, and were fraudulently induced into executing the

various plan documents.

[93] As with the Judson Plaintiffs and their allegations against Light, the Kapoor

Plaintiffs’ allegations are sufficiently specific, given the time elapsed since the

alleged misrepresentations were made. The Kapoor Plaintiffs have alleged

several specific statements regarding the Cronin ISP and GTLP Plans, which

they also allege were false, upon which they relied to their detriment. This is

sufficient to satisfy the particularity requirement of Trial Rule 9(B).

[94] The Kapoor Plaintiffs allege that Dybwad had served their financial and

insurance needs as far back as 1999 and that he was a trusted financial advisor.

As we have concluded, these allegations are sufficient to support a finding of a

fiduciary duty. Moreover, we conclude that the elements of constructive fraud,

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 49 of 54 including a duty, have been pled with sufficient specificity. The Kapoor

Plaintiffs have pled specific facts that could establish a fiduciary relationship,

detrimental reliance on Dybwad’s silence, and an advantage gained by Dybwad

in the form of commissions.

III. Arguments Related to Plaintiffs’ Negligence Claims 6

[95] “In order to prevail on a claim of negligence the plaintiff must show: (1) duty

owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall

below the applicable standard of care; and (3) compensable injury proximately

caused by defendant’s breach of duty.” Williams v. Cingular Wireless, 809

N.E.2d 473, 476 (Ind. Ct. App. 2004), trans. denied.

A. Whether the Economic Loss Doctrine Bars Plaintiffs’ Negligence Claims Against Fox & Fox [96] Plaintiffs argue that the trial court erred in dismissing their negligence claims

against Fox & Fox because the economic loss doctrine has no applicability in

this case and therefore does not bar the tort action. In general,

the economic loss rule reflects that the resolution of liability for purely economic loss caused by negligence is more appropriately determined by commercial rather than tort law. As noted at the very outset of this Discussion supra, the economic loss rule provides that a defendant is not liable under a tort theory for any

6 Although Plaintiffs brought negligence claims against all Defendants, they only present arguments based on the dismissal of their negligence claims against Fox & Fox and Greenwalt. Because Plaintiffs have not provided a cogent argument that their negligence claims against all other Defendants were wrongfully dismissed, we regard the claims abandoned. See App. R. 46(A)(8)(a).

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 50 of 54 purely economic loss caused by its negligence (including, in the case of a defective product or service, damage to the product or service itself)—but that a defendant is liable under a tort theory for a plaintiff’s losses if a defective product or service causes personal injury or damage to property other than the product or service itself.

Indpls.-Marion Cty. Pub. Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722,

729 (Ind. 2010).

[97] Plaintiffs rely on Douglas, in which the plaintiffs sought recovery from AUL,

who sold them an employee-benefit package that underperformed. 808 N.E.2d

at 693. Plaintiffs sued, not for losses caused to the purchased product by the

product itself, but, rather, for “recovery of their losses due to the alleged

misrepresentations or omissions by AUL.” Id. at 705. We agreed that the

economic loss doctrine did not apply, noting that “[t]his is not a case seeking

recovery for losses caused to the product by the product [and a]s the trial court

found, it is not a ‘failure to perform’ case.” Id. at 705.

[98] We agree with Plaintiffs that, pursuant to Douglas, the economic loss doctrine

does not bar their negligence claim against Fox & Fox. Plaintiffs do not allege

that Fox & Fox’s alleged negligence caused damage to the product by the

product or that Fox & Fox failed to perform, but, rather, that Fox & Fox’s

alleged negligence resulted in damages in the form of back taxes, penalties, and

interest. We conclude that Plaintiffs’ negligence claim against Fox & Fox is not

barred by the economic loss doctrine. Id.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 51 of 54 B. Whether the Accountant Statute of Limitations Bars the Judson Plaintiffs’ Negligence Claim Against Greenwalt [99] Greenwalt contends that Indiana Code section 25-2.1-15-2 bars the Judson

Plaintiffs’ negligence claim against it. Indiana Code section 25-2.1-15-2, which

governs that statute of limitations for claims against accountants, provides as

follows:

An action under this chapter must be commenced by the earlier of the following: (1) One (1) year from the date the alleged act, omission, or neglect is discovered or should have been discovered by the exercise of reasonable diligence. (2) Three (3) years after the service for which the suit is brought has been performed or the date of the initial issuance of the accountant’s report on the financial statements or other information.

1. Subsection 1

[100] The Judson Plaintiffs contend that the one-year time period began to run

against them when they received their notice of deficiency from the IRS on

March 6, 2013. Greenwalt contends that the one-year time period for bringing

a negligence suit against it began to run in 2011, when the Judson Plaintiffs

received notice that they were being audited.

[101] Greenwalt relies on this court’s decision in KPMG, Peat Marwick, LLP v. Carmel

Financial Corp., 784 N.E.2d 1057, 1059 (Ind. Ct. App. 2003), for the proposition

that the year began to run in 2011, not 2013. In 1997, the plaintiff discovered

what both parties agreed was negligent accounting performed in 1996, but did

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 52 of 54 not file suit until 2001. Id. at 1059, 1061. Plaintiff argued that the limitations

period did not begin to run until the IRS had made its final determination as to

the amount owed, so that plaintiff could plead a specific amount of damages.

Id. at 1061. We rejected plaintiff’s argument, noting that Indiana Code section

25-2.1-15-2 refers to the discovery of the “act, omission or neglect” (both parties

agreed that the negligence was discovered in 1997), not the amount of damages

or cause of action. Id.

[102] KPMG, however, does not help Greenwalt. Here, as opposed to KPMG, there

is no agreement that Greenwalt’s alleged negligence was discovered in 2011.

The Judson Plaintiffs argue that the allegedly negligent nature of Greenwalt’s

acts was not clear until the IRS issued its notice of deficiency in March of 2013,

a proposition with which we agree. It would be unreasonable to start the clock

upon notice of an IRS audit, as many audits, after all, do not result in findings

of deficiency. Without a deficiency, there is no tenable lawsuit. To accept

Greenwalt’s argument on this point would encourage early lawsuits, some—or

many—of which would turn out to be premature and meritless. The Judson

Plaintiffs’ negligence claims against Greenwalt are not barred by subsection 1.

2. Subsection 2

[103] Greenwalt contends that any claims by the Judson Plaintiffs relating to conduct

occurring before September 13, 2010, are barred by Indiana Code section 25-

2.1-15-2(2). The Judson Plaintiffs do not contest this assertion. The Judson

plaintiffs may not pursue claims against Greenwalt based on conduct allegedly

occurring before September 13, 2010. Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 53 of 54 Conclusion [104] We conclude that the trial court erred in dismissing the following actual fraud

claims: (1) the Kapoor Plaintiffs against Dybwad and (2) the Judson Plaintiffs

against Light. We conclude that the trial court erred in dismissing the following

constructive fraud claims: (1) the Kapoor Plaintiffs against Dybwad, (2) the

Judson Plaintiffs against Light, (3) all Plaintiffs against CIS, (4) all Plaintiffs

against Fox & Fox, and (5) all Plaintiffs against WRL. The trial court erred in

dismissing the following negligence claims: (1) all Plaintiffs against Fox & Fox

and (2) the Judson Plaintiffs against Greenwalt. The Judson Plaintiffs,

however, may not base a claim of negligence on Greenwalt’s part for any

conduct occurring before September 13, 2010. We affirm the judgment of the

trial court in all other respects. Specifically, we affirm the trail court’s dismissal

of the following claims: (1) any and all fraud by omission, negligent

misrepresentation, unjust enrichment, and money had and received claims

brought by any Plaintiffs against any Defendants; (2) all actual fraud claims

against CIS, ASBE, Fox & Fox, WRL, WTB, and Greenwalt; (3) all

constructive fraud claims against ASBE, WTB, and Greenwalt; and (4) all

negligence claims against Dybwad, Light, CIS, ASBE, WRL, and WTB.

[105] We affirm the judgment of the trial court in part, reverse in part, and remand

for further proceedings consistent with this opinion.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Opinion 49A04-1410-CT-492 |December 15, 2015 Page 54 of 54