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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA panel of the Indiana Court of Appeals has reversed a judgment against a Hamilton County pizzeria company’s owner after finding the trial court erred in concluding that he failed to establish money damages for his partners’ acts of forgery and counterfeiting related to the business, among other things, awarding more than $197,000 in damages and over $21,000 in legal fees.
In 2014, David McLean joined Joshua Trisler and David Koeppen as members of Greek’s Mobile Response Team, LLC, which owned and operated a Greek’s Pizzeria franchise in The Village of West Clay in Hamilton County. Later in the year, Koeppen’s interest in GMRT was divided pro rata between McLean and Trisler, giving McLean at least a 50% share.
By November 2014, Trisler sought to acquire a Greek’s Pizzeria franchise in Carmel, then operated by Rolling in Dough GP1, LLC, with GMRT assets. Trisler applied $41,000 in GMRT funds to the purchase and capitalization of Greek’s Carmel. Then in January 2015, Koeppen personally executed a promissory note and applied $4,000 in GMRT funds to his loan.
Becoming concerned about Trisler’s and Koeppen’s activities, McLean unsuccessfully attempted to review the books and records of GMRT. Trisler in September 2016 entered into an agreement to convey all of the assets of GMRT to a buyer for $350,000.
Koeppen – despite supposedly no longer having any interest in GMRT – and Trisler approved the sale over McLean’s objection, prompting McLean to sue them both, as well as GMRT, Rolling in Dough, and several other defendants for claims for which he sought both money damages and injunctive relief.
The trial court granted McLean’s motion for further sanctions against the defendants for damages discovery violations, ruling that the defendants were prevented from producing evidence at the damages hearing and awarding McLean attorney’s fees.
But when the damages hearing concluded in January 2019, the defendants moved for involuntary dismissal, which the trial court granted, dismissing all claims against all defendants brought by McLean on the basis that McLean had failed to sufficiently prove his actual damages.
On appeal, McLean argued whether the trial court’s conclusion was clearly erroneous in the case of David McLean, individually and derivatively on behalf of Greek’s Mobile Response Team, LLC v. Joshua Trisler, et al., 19A-PL-417. The appellate court first found that the trial court’s finding that McLean failed to establish damages related to the unauthorized sale of Greek’s West Clay was clearly erroneous.
“Pursuant to our holding in JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 954 (Ind. Ct. App. 1992), the Trisler Parties’ failure to produce any evidence regarding debts or liabilities of GMRT cannot support a finding that McLean failed to establish damages with sufficient specificity. To conclude otherwise would be to essentially reward the Trisler Parties for their recalcitrance and repeated defiance of the trial court’s discovery orders. Consequently, we conclude that McLean is entitled to directly recover fifty percent of the sale price of Greek’s West Clay, or $175,000.00,” Chief Judge Cale Bradford wrote for the appellate court.
It further found that the admitted allegations, which were not countered by any evidence, were sufficient to establish damages in regard to the conversion of GMRT funds. Thus, the appellate court concluded that McLean established direct damages of $22,500, or half of the $45,000 withdrawn, reflecting his 50% share in GMRT.
“We remand for the entry of judgment in favor of McLean, as an individual, in the amount of $197,500.00, divided as follows: $175,000.00 against Trisler and Koeppen, $20,500.00 against Trisler and Rolling in Dough, and $2000.00 against Koeppen. We also remand for the entry of an award of attorney’s fees in the amount of $21,193.84. We further instruct the trial court to determine the appropriateness of the award of up to three times the actual damages to McLean, the costs of the actions, reasonable attorney’s fees, and/or other amounts which may be due pursuant to the CVRA. Finally, we instruct the trial court to enter a declaratory judgment in favor of McLean on his direct claim for the determination of ownership rights in Rolling in Dough,” it concluded.
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