John H. Battershell and Helen A. Battershell v. Stuart C. Surface (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 04 2018, 9:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Fred L. Cline Mark R. Waterfill
Oliver & Cline, LLP Indianapolis, Indiana
Danville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John H. Battershell and Helen A. October 4, 2018
Battershell, Court of Appeals Case No.
Appellants-Defendants/Counter- 32A01-1708-CC-1989
Plaintiffs, Appeal from the Hendricks
Superior Court
v. The Honorable Mark A. Smith,
Judge
Stuart C. Surface, Trial Court Cause No.
Appellee-Plaintiff/Counter-Defendant. 32D04-1312-CC-1270
Mathias, Judge.
[1] Stuart Surface (“Surface”) filed a complaint in Hendricks Superior Court
against John and Helen Battershell (collectively “the Battershells”) alleging that
the Battershells breached their lease agreement with Surface. The Battershells
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 1 of 23
counterclaimed and alleged that Surface breached the lease agreement. The trial
court initially granted summary judgment to the Battershells but later set aside
its judgment. After a bench trial, the court determined that the Battershells
breached the lease agreement. However, the court concluded that Surface failed
to prove damages, and therefore, entered a zero-damage award but ordered the
Battershells to pay Surface’s attorney fees in the amount of $37,312.22.
[2] The Battershells appeal and raise several issues, which we restate as:
I. Whether the trial court abused its discretion when it set aside its
order entering summary judgment in the Battershells’ favor;
II. Whether the trial court erred when it concluded that Surface did not
breach the lease agreement;
III. Whether the trial court erred when it concluded that the Battershells
converted Surface’s personal property; and,
IV. Whether the trial court erred when it awarded attorney fees to
Surface.
Surface cross-appeals and raises two arguments, which we restate as:
I. Whether the trial court erred when it concluded that Surface failed to
prove damages for the converted personal property; and,
II. Whether the trial court abused its discretion when it awarded Surface
less than the amount he requested in attorney fees.
[3] We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[4] The Battershells own commercial real estate located at 258 Meadow Drive in
Danville, Indiana. Surface, who is a real estate agent and a member and
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 2 of 23
manager of a property renovation company, began renting commercial property
from the Battershells in 2008. In 2013, Surface wanted to increase the size of his
office space. Therefore, the parties agreed to lease terms for the larger Meadow
Drive property.
[5] Surface requested certain improvements and modifications to his new office
space. The parties agreed that the Battershells would initially pay for the
improvements, but that total cost of improvements would be amortized over the
life of the ten-year lease. Surface agreed to pay rent in the amount of $1,310.56
per month.
[6] In May 2013, the parties executed the lease agreement. The lease agreement
provided that Surface was required to purchase liability and casualty insurance
naming both parties as the insureds. Surface gave the Battershells a copy of the
required certificate of insurance. However, the Battershells were not named as
insureds. In August 2013, the Battershells sent Surface a letter asking him to
provide a certificate of insurance naming them as insureds as required by the
lease agreement. But the letter did not specifically declare that Surface had
breached the lease agreement.
[7] Also, on December 13, 2013, Surface attempted to pay his rent due on
December 15, but the Battershells’ office was locked. Therefore, the Battershells
did not receive the lease payment until December 16, 2013. The lease
agreement provided that if Surface failed to pay rent for ten days after its due
date, the Battershells had the right to re-enter the premises and take possession.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 3 of 23
[8] The Battershells assumed that Surface intended to vacate the property because
certain furniture was missing. Surface had moved certain property and furniture
that was previously affixed to the premises1 to another location. Surface never
informed the Battershells that he intended to move out of the property.
[9] On December 16, 2013, one day after his rent was due and without notifying
Surface, the Battershells changed the locks on the Meadow Drive property.
Therefore, Surface was unable to access his personal property located on the
premises and was deprived of use of the premises.
[10] On December 18, 2013, Surface sent a letter to the Battershells stating that the
Battershells had breached the lease agreement by denying him access to the
leased property. Surface also requested the return of certain personal property
left on the premises. Surface received some, but not all, of the personal property
that was stored in his office. The property that was not returned to him were
items of sentimental value that belonged to his deceased mother.
[11] On December 27, 2013, Surface filed a complaint against the Battershells
alleging breach of contract and asserting claims for replevin and conversion.
The Battershells counterclaimed also arguing breach of contract, theft and
conversion.
1
Surface purchased and paid for the assembly and installation of office furniture and storage units.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 4 of 23
[12] In December 2014, after Surface’s attorney withdrew and Surface failed to
respond to certain discovery requests, including requests for admissions, the
Battershells moved for summary judgment. Surface failed to respond to the
motion, and the trial court granted summary judgment to the Battershells on
January 30, 2015.
[13] On April 24, 2015, Surface filed a motion for relief from judgment and a
motion to withdraw deemed admissions. A hearing was held on the motions,
and on August 14, 2015, the trial court set aside the summary judgment order
and the deemed admissions.2
[14] A bench trial was held on May 16, 2017. And on June 20, 2017, the trial court
issued findings of fact and conclusions of law. In pertinent part, the trial court
concluded that
2. The Lease between Surface and [Battershell] is not ambiguous.
Under the unambiguous language of the Lease, Battershell was
required to notify Surface of any alleged breach and to allow
Surface to correct the breach in twenty (20) days.
3. At the time that Battershell changed the locks and locked
Surface out of the Leased Premises, Battershell breached the
Lease and violated Indiana law.
2
The Battershells filed a motion requesting the trial court certify its order granting Surface’s Trial Rule 60(B)
motion for interlocutory appeal. The trial court denied the Battershells’ motion. Appellants’ App. p. 8.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 5 of 23
4. Battershell committed an act of conversion of Surface’s
personal items in violation of Ind. Code § 35-43-4-3(a).
Appellants’ App. p. 19.
[15] However, the trial court also found that Surface failed to prove the value of the
converted personal items. Consequently, he was “not entitled to recover any
damages for the converted property not returned.” Id. Yet, the trial court also
concluded that Surface was entitled to attorney fees pursuant to Indiana Code
section 34-24-3-1 in the amount of $37,312.22. This amount is significantly less
than the $97,912.47 in fees that Surface requested.
[16] The Battershells appeal the trial court’s order setting aside the summary
judgment entered in their favor and the trial court’s judgment in favor of
Surface. Surface cross-appeals arguing that he should have been awarded
damages for the sentimental value of his personal property.
Standard of Review
[17] At the conclusion of the bench trial, the trial court entered findings of fact and
conclusions of law pursuant to Indiana Trial Rule 52.
The findings or judgment are not to be set aside unless clearly
erroneous, and we give due regard to the trial court's ability to
assess the credibility of witnesses. On review, we first consider
whether the evidence supports the factual findings and then
consider whether the findings support the judgment. Further,
“while we defer substantially to findings of fact, we do not do so
to conclusions of law.”
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 6 of 23
WindGate Properties, LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App. 2018)
(quoting Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000)).
I. The Trial Court’s Order Setting Aside Summary Judgment
[18] The trial court initially entered summary judgment in favor of the Battershells
after Surface failed to respond to the motion. Approximately three months later,
Surface filed a motion for relief from judgment pursuant to Trial Rule 60(B)(1)
and (8), which provides in pertinent part:
On motion and upon such terms as are just the court may relieve
a party or his legal representative from a judgment, including a
judgment by default, for the following reasons:
(1) mistake, surprise, or excusable neglect;
(8) any reason justifying relief from the operation of the
judgment, other than those reasons set forth in sub-paragraphs
(1), (2), (3), and (4).
A movant alleging mistake, surprise, or excusable neglect “must allege a
meritorious claim or defense.” T.R. 60(B).
[19] The trial court concluded that Surface met his burden of proving that he was
entitled to relief under Trial Rule 60(B). See id. The Battershells appeal and
argue that the trial court abused its discretion when it granted relief to Surface
because they presented evidence that Surface was aware of filings in the case
and that he understood that a response to their summary judgment motion was
required.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 7 of 23
[20] Relief under Trial Rule 60(B) is “an equitable remedy within the trial court’s
discretion,” and we “review a trial court’s Rule 60 ruling only for abuse of
discretion.” In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). “The trial
court’s discretion is necessarily broad in this area because any determination of
excusable neglect, surprise, or mistake must turn upon the unique factual
background of each case[.]” Huntington Nat’l Bank v. Car-X Assoc. Corp., 39
N.E.3d 652, 655 (Ind. 2015) (citation omitted). And when we review a trial
court’s decision to grant or deny a Trial Rule 60 (B) motion, we do not reweigh
the evidence or substitute our judgment for that of the trial court. Id.[21] Default judgment “plays an important role in the maintenance of an orderly,
efficient judicial system as a weapon for enforcing compliance with the rules of
procedure and for facilitating the speedy determination of litigation[.]” Charnas
v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005). However, “in
Indiana there is a marked judicial deference for deciding disputes on their
merits and for giving parties their day in court[.]” Id. And any doubt as to the
propriety of a default judgment must be resolved in favor of the defaulted party.
Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind. 2001).
[22] There is no general rule as to what constitutes excusable neglect under Trial
Rule 60(B). Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 310 (Ind. Ct. App.
2012) (citing Kmart v. Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999),
trans. denied), trans. denied. Each case must be determined on its particular facts.
Id. Sickness of a party has been held to constitute excusable neglect. Id. (quoting
Kmart, 719 N.E.2d at 1254).
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 8 of 23
[23] Here, Surface’s counsel withdrew from the case in May 2014. Surface does not
dispute that he received notice of pleadings and discovery requests that the
Battershells filed while he was unrepresented by counsel. The Battershells filed
their motion for summary judgment on December 23, 2014. Approximately
two weeks later, Surface sent an email to the Battershells’ attorney that stated,
“I have retained a law firm to represent me in the Battershell matter. They will
make their appearance this week.” Appellants’ App. p. 128. An attorney did not
file an appearance for Surface before the response to the motion for summary
judgment was due.
[24] One week before the summary judgment response was due, Surface was
admitted to Fairbanks Hospital for inpatient drug treatment. Shortly thereafter,
he was transferred to an intensive inpatient residential facility in Florida. In
addition to his drug addiction, Surface argues he was entitled to relief from
judgment because he was suffering from “compromised higher cerebral
functioning of a moderate to severe degree” which impaired his general
cognitive abilities. Id. at 136. Surface submitted to the trial court a report from
Dr. Donald Layton, a licensed psychologist and neuropsychologist, who
evaluated Surface and concluded that “current impairments reflect a clear
decline in this patient’s higher cognitive functioning from some previous,
probably average level given his level of education.” Id. Dr. Layton also
concluded that given the “nature and significance of [Surface’s] impairments,
he will require assistance with his medications, financial affairs and nutritional
needs.” Id.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 9 of 23
[25] The trial court was presented with evidence that Surface’s severe drug addiction
and neurological and psychological impairments prevented him from actively
participating in the proceedings. Moreover, Surface had not abandoned the
litigation but had twice communicated with the Battershells’ attorney during
the months he was unrepresented by counsel. Finally, Surface presented
evidence a meritorious claim and defense as required by Trial Rule 60B(B).3 For
these reasons, and given the unique facts of this case, we conclude that the trial
court acted within its considerable discretion when it granted Surface’s Trial
Rule 60(B) motion for relief from judgment.
II. Breach of the Lease Agreement
[26] The Battershells also dispute the trial court’s interpretation of the lease and its
conclusion that Surface did not breach the parties’ lease agreement. A lease is
construed in the same manner as any other contract. Stout v. Kokomo Manor
Apts., 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997). The construction of the
3
The Battershells argue that Surface should not have been permitted to present any evidence of a meritorious
defense because Surface failed to respond to its motion for summary judgment and a trial court may not
consider any response filed outside the thirty-day time limit established in Trial Rule 56. The Battershells cite
to Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967 (Ind. 2014) in support of their argument. In that case,
the court addressed a conflict between Trial Rules 54(B) and 56(C) and held that a trial court cannot consider
summary judgment filings of a party after the thirty-day deadline in Rule 56(C). Id. at 973. However, in that
same case, the supreme court explained that the Appellees were not precluded from seeking Trial Rule 60(B)
relief from the trial court’s order granting partial summary judgment to the Appellant. Id. at 974. We cannot
conceive of any reason our supreme court would expressly state that a party may file a Trial Rule 60(B)
motion requesting relief from an order granting summary judgment if a party would not also be permitted to
present evidence of a meritorious defense. But see Welton v. Midland Funding, LLC, 17 N.E.3d 353 (Ind. Ct.
App. 2014).
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 10 of 23
terms of a written contract is a pure question of law, which we review de novo.
Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).
When construing the meaning of a contract, our primary task is
to determine and effectuate the intent of the parties. First, we
must determine whether the language of the contract is
ambiguous. The unambiguous language of a contract is
conclusive upon the parties to the contract and upon the courts.
If the language of the instrument is unambiguous, the parties’
intent will be determined from the four corners of the contract. If,
on the other hand, a contract is ambiguous, its meaning must be
determined by examining extrinsic evidence and its construction
is a matter for the fact-finder. . . . We read the contract as a
whole and will attempt to construe the contractual language so as
not to render any words, phrases, or terms ineffective or
meaningless. We must accept an interpretation of the contract
that harmonizes its provisions, rather than one that places the
provisions in conflict.
Whitaker v. Brunner, 814 N.E.2d 288, 293–94 (Ind. Ct. App. 2004), trans. denied
(citations and quotation marks omitted).
[27] The lease agreement contained the following provision:
Tenant will purchase and maintain, at its own expense, public
liability and casualty insurance naming Landlord and Tenant as
insureds and insuring against liability for injuries to persons and
property occurring on the real estate or within the Leased
Premises, all with limits of liability coverage in an amount not
less than $1,000,000.00. Tenant further agrees to purchase and
maintain, at its own expense, content insurance, protecting
Tenant’s personal property located within the demised premises.
Tenant will furnish Landlord with certificates of such coverage
within ten (10) days of commencement of this Lease.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 11 of 23
Appellants’ App. p. 35. The lease agreement also provided that if Surface
breached the lease agreement and the default was not cured “within twenty (20)
days after written notice of such breach, it shall be lawful for Landlord . . . to re-
enter into and upon said Leased Premises . . . and repossess the same and
institute legal proceedings for any rent that may be due thereon.” Id. at 37.
[28] The trial court found that under the unambiguous terms of the lease agreement,
the Battershells were required to notify Surface of any alleged breach and allow
him to correct the breach in twenty days. Id. at 19. The court then simply
concluded that the Battershells were “entitled to nothing by way of its
counterclaim.” Id.
[29] Surface obtained liability insurance and forwarded a copy of the liability
insurance to the Battershells as specified in the lease agreement. However, the
insured was listed as Surface & Young LLC,4 and the Battershells were not
named as additional insureds. Therefore, in August 2013, the Battershells sent
Surface a letter asking him to “provide the required Insurance Certificate or
provide some sort of explanation of how you intend to resolve this matter.” Id.
at 96.
4
The Battershells also argue that naming “Surface and Young LLC” as the insured breached the lease
agreement because the agreement was executed between Surface, individually, and the Battershells. But
Surface was a manager and member of that company. In any event, that Surface and Young LLC was listed
as the insured is not outcome determinative of the issues presented in this appeal.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 12 of 23
[30] The letter did not explicitly state that Surface had breached the lease agreement.
However, the letter did explain that the certificate of insurance provided by
Surface did not comply with paragraph nine of the parties’ agreement. Yet, the
Battershells did not demand any specific action within 20 days but only
requested the required insurance certificate or an explanation of how Surface
intended to resolve the matter.
[31] Moreover, the Battershells took no other action on Surface’s failure to name the
Battershells as insureds on the liability policy. And the Battershells continued to
collect Surface’s rent payments and allowed him to remain in possession of the
premises. By failing to demand that Surface produce the required insurance
certificate within twenty days and by allowing Surface to remain in possession
of the premises, the Battershells essentially waived that provision of the contract
and acquiesced to Surface’s breach. White River Conserv. Dist. v. Commonwealth
Engineers, Inc., 575 N.E.2d 1011, 1016 (Ind. Ct. App. 1991) (stating “strict
performance of the terms of a contract on the part of one party may be waived
by the other”), trans. denied; see also Turner v. Nationstar Mortg., LLC, 45 N.E.3d
1257, 1263–64 (Ind. Ct. App. 2015) (“Abandonment may be inferred from the
conduct of the parties, and a contract will be treated as abandoned when one
party acts inconsistently with the existence of the contract, and the other party
acquiesces.”).
III. Conversion
[32] Next, the Battershells argue that the trial court erred when it concluded that
they were liable for conversion. A person who knowingly or intentionally exerts
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 13 of 23
unauthorized control over property of another person commits criminal
conversion. Ind. Code § 35-43-4-3. “A person engages in conduct ‘intentionally’
if, when he engages in the conduct, it is his conscious objective to do so.” Ind.
Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he
engages in the conduct, he is aware of a high probability that he is doing so.”
Ind. Code § 35-41-2-2(b). Indiana Code section 35-43-4-1(a) provides that to
“exert control over property” means “to obtain, take, carry, drive, lead away,
conceal, abandon, sell, convey, encumber, or possess property, or to secure,
transfer, or extend a right to property.” A person’s control over property of
another person is “unauthorized” if it is exerted without the other person’s
consent, in a manner or to an extent other than that to which the other person
has consented, or by promising performance that the person knows will not be
performed. See Ind. Code § 35-43-4-1-(b)(1), -(2), and -(6).
[33] Pursuant to Indiana Code section 34-24-3-1, a person who has suffered a
pecuniary loss as a result of a criminal conversion may bring a civil action to
recover the loss. JET Credit Union v. Loudermilk, 879 N.E.2d 594, 597 (Ind. Ct.
App. 2008), trans. denied. If the person who suffered the pecuniary loss proves
the elements of criminal conversion by a preponderance of the evidence, he or
she can recover up to three times the actual damages, the costs of the action,
and reasonable attorney’s fees. Id. at 596 n.4, 597.
[34] The trial court found that after the Battershells locked Surface out of the
premises, Surface did not have access to his personal property at the leased
premises.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 14 of 23
25. On December 18, 2013, Surface’s counsel sent a letter to
Battershell asserting that Battershell was in material breach of the
Lease and demanded that Surface be allowed to return to the
Leased Premises and to retrieve his personal property.
26. Surface made a request for the return of all of his remaining
personal property, including construction materials, a nine-
millimeter pistol, an Xbox gaming system, a Rolex Submariner
watch, a number of his deceased mother’s personal affects, and
items he purchased to give his family as Christmas gifts.
27. Ultimately, at a meeting with Battershell and counsel, some
construction materials and a nine-millimeter pistol were returned
to Surface. However, the rest of Surface’s personal property,
including personal items from his deceased mother, was not
returned.
Appellants’ App. p. 18. The trial court found that the Battershells committed
conversion by failing to return all of Surface’s personal property.
[35] The Battershells locked Surface out of the leased premises without notice and
without giving him an opportunity to remove his personal property. Surface
prepared an itemization of the property left in the leased premises, which was
admitted at trial as Exhibit 11. Certain items on the list were eventually
returned to Surface, but other items were not. Tr. p. 37.
[36] The only testimony to support the trial court’s conclusion that Surface owned
the property in question and that it was located in the leased premises was
Surface’s own testimony. Surface did not produce receipts or other
documentation establishing ownership of personal property. But as the finder of
fact, the trial court chose to credit Surface’s testimony concerning his property
that was never returned. Surface’s testimony is sufficient to prove by a
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 15 of 23
preponderance of the evidence that the Battershells converted Surface’s
property.
IV. Zero-Damage Award
[37] In his cross-appeal, Surface argues that the trial court erred when it awarded
him zero damages. The trial court declined to award damages because Surface
“failed to prove the value of his damages as to the converted property.”
Appellants’ App. p. 19.
He testified that the value of his deceased mother’s property was
sentimental. Surface did not submit any receipts or other
satisfactory evidence of the value of the remaining items of
personal property identified in his Exhibit 11. Therefore, he is not
entitled to recover any damages for the converted property not
returned.
Id.[38] Surface argues that he was entitled to a damage award based on the sentimental
value of his converted property. Surface cites to two cases in support of his
argument that “a damage award may be based upon” sentimental value.
Appellee’s Br. at 23.
[39] In Campins v. Capels, 461 N.E.2d 712 (Ind. Ct. App. 1984), three national racing
championship rings were stolen and eventually destroyed. Capels sued the gold
dealer who purchased the stolen rings and melted them down. Capels testified
to the significant meaning and sentimental value of the rings at trial. He also
testified that rings were custom made and submitted evidence of the price of
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 16 of 23
gold on the date the rings were stolen. Capels estimated that he would have
never sold the rings but that their worth was between $700 to $1,000, “finally
settling on $750 when asked to be specific.” Id. at 716.
[40] The trial court valued the rings at $1,000 each. On appeal, Campins, the gold
dealer, argued that the damage award was excessive and Capels’s damages
should be restricted to the price of gold or replacement value of the rings. Our
court observed that considering sentimental value of an item to determine
damages can be appropriate “in limited circumstances.” Id. at 721.
When we refer to sentimental value, we do not mean mawkishly
emotional or unreasonable attachments to personal property.
Rather, we are referring to the feelings generated by items of
almost purely sentimental value, such as heirlooms, family
papers and photographs, handicrafts, and trophies. What we are
referring to basically are those items generally capable of
generating sentimental feelings, not just emotions peculiar to the
owner. In other words, any owner of these USAC rings would
have similar feelings. The most apt analogy to our situation is
that of the trophies. In two cases, courts have awarded damages
based on the consideration of the “blood, sweat and tears”
expended to win these objects. We see no difference in giving
special consideration to items such as these and to the three
USAC rings, awarded for three years of “blood, sweat and tears”
and thus having special sentimental meaning for Capels.
Id. (citations omitted).
[41] Our court therefore concluded that it was appropriate for the trial court to
award damages in excess of the replacement value of the rings because of the
unique circumstances and “special attachment to this property.” Id. at 722.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 17 of 23
However, our court concluded that awarding more than $750 per ring was
excessive. Specifically, the court explained:
we can hardly deem it appropriate to fix a value higher than that
asserted by the owner. Capels finally settled upon a figure of $750
per ring; the court’s award of $1000 apiece could only have been
improperly based on speculation. To decide otherwise would be
to open a Pandora’s box of problems in the computation and
proof of actual value. By our decision here, we simply conclude
that certain property, by its very nature, has an element of
sentiment essential to its existence. In this case, we refer to
symbols for achievements of national stature and recognition and
the calculation of their actual value. But we must also add the
proviso that even for significant awards or mementos we do not
intend to permit fanciful speculation as to their worth. We must
fashion our remedy within the realm of sensibility, as here, where
$750 is only slightly above the established range of replacement
values. Such would naturally also be our standard in valuating
similar significant awards, such as an Oscar, the Heisman
Trophy, or an Olympic medal, where the recipient retains the
honor despite the loss of the trophy, such trophy being merely the
symbol of the achievement and perhaps replaceable by a
surrogate. A certain amount of sentiment is inherent in the value
of these objects to the owner, and each case must be based on its
own facts. But we must refrain from considering all but
reasonable estimates of that element of sentiment. We believe in
this case, Capels’s $750 figure was just such a reasonable value of
each ring with the sentiment included therein.
Id. at 722–23.
[42] Surface also relies on Mitchell v. Mitchell, 685 N.E.2d 1083 (Ind. Ct. App. 1997),
trans. granted, 695 N.E.2d 920, summarily aff’d in relevant part. In Mitchell, the
decedent’s daughter, Pam, and his second wife, Flossie, were engaged in a long-
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 18 of 23
standing and bitter dispute over pictures, home movies, and the decedent’s
personal effects. The parties eventually entered into an agreement concerning
disposition of the property, but Flossie failed to turn over certain property to
Pam as agreed. Therefore, Pam sued for specific performance under their
contract.
[43] At trial, Pam testified that the items were important to her and were of great
sentimental value, but “expressed difficulty in placing a dollar figure on items
with little market value[.]” Id. at 1086. She eventually testified that her damages
for her time, travel, expenses for trying to retrieve the items, and her emotional
suffering was between $35,000 and $50,000. Id. She also testified that the value
of the items she had never received was between $77,000 and $100,000. Id. The
trial court ordered Flossie to produce the items Pam had not received under the
terms of the agreement and pay Pam “$35,000.00 as damages for the wilful
three[-]year delay in complying with the agreement.” Id.[44] On appeal, Flossie argued that the $35,000 damage award was speculative and
unsupported by independent evidence of Pam’s damages. Citing Campins, our
court observed that
“in establishing proof of loss, the complainant is less compelled
to provide certainty in the amount of loss as he is to provide
certainty in the actual fact of loss.” “In addition, no mathematical
exactitude is required in assessing damages, and all uncertainties
are resolved in favor of the complainant and against the
wrongdoer.” There was ample evidence before the trial court to
provide certainty as to the proof of loss and prove that the delay
was caused by the intentional actions of Flossie. Though we
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 19 of 23
recognize that placing a dollar value on items of purely
sentimental value is a difficult and abstract business, we believe
that Campins provides sufficient guidance in the determination of
damages.
Id. at 1088–89 (citing Campins, 461 N.E.2d at 722) (emphasis in original). Our
court affirmed the $35,000 damage award after noting it was supported by the
trial court’s findings and was the lowest estimate requested by Pam.
[45] In this case, Surface testified that the property was “not worth a whole lot of
monetary value.” Tr. p. 38. And the only value of the property was sentimental
value. Id. at 38, 54–55. Surface was specifically asked what value he would
place on the property, and he stated, “there’s no value that . . . you could put
[on] these items” and “[i]f you gave me three hundred thousand dollars
($300,000) I wouldn’t take that for ‘em (sic), . . . there’s just no value.” Id. at 38.
[46] Unlike the cases Surface relies on, here there is no testimony or evidence from
which the trial court could appropriately fashion a damage award. The Campins
court specifically cautioned against engaging in “fanciful speculation” to
determine a damage award where personal property has unique sentimental
value attached. 461 N.E.2d at 722. Surface failed to provide any evidence
concerning value of the converted personal property, and therefore, we affirm
the trial court’s zero-damage award.
V. Attorney Fees
[47] Finally, Battershells argue that Surface’s failure to prove monetary damages
precludes an award of attorney fees. Under the Crime Victim’s Relief Act, a
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 20 of 23
person who suffers a pecuniary loss as a result of conversion may recover
reasonable attorney fees from the person who caused the loss. Ind. Code § 34-
24-3-1. The statute is penal in nature and must be strictly construed. Coleman v.
Coleman, 949 N.E.2d 860, 869 (Ind. Ct. App. 2011).
[48] In Coleman, our court held that “if a plaintiff suffers no pecuniary loss as the
result of a defendant’s actions, the plaintiff is not entitled to recover attorney
fees under the Crime Victim’s Relief Act. Id. (citing Bridgeforth v. Thornton, 847
N.E.2d 1015, 1028 (Ind. Ct. App. 2006)).
The statute explicitly refers to “pecuniary loss” as the necessary
prerequisite for an award of attorney fees. It does not state that
any “victim” of one of the enumerated crimes is entitled to
attorney fees. If the legislature had intended the statute to have
that broad of an application, it could have worded the statute
differently.
Id. The jury found in favor of the plaintiff on the theft count but also found that
she suffered no damages as a result of the theft. Therefore, our court concluded
that the plaintiff was not entitled to an award of attorney fees. Id. at 870.
[49] In its separate order awarding attorney fees, the trial court found that Surface
“suffered a pecuniary loss as a result of” the Battershells’ conduct and was
entitled to an award of attorney fees pursuant to Indiana Code section 34-24-3-
1. Appellants’ App. p. 21. The trial court concluded that Surface’s “pecuniary
loss consisted of many items of personal property that were identified as having
sentimental value, and other property that while [Surface] failed to establish a
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 21 of 23
value for purposes of an award of damages, still were converted nonetheless.”
Id. at 22.
[50] Black’s Law Dictionary defines the term “pecuniary” as “of or relating to
money; monetary.” Black’s Law Dictionary 1152 (7th ed. 1999). And a pecuniary
loss is defined as “a loss of money or of something having monetary value.” Id.
at 957. Similarly, the Oxford English Dictionary defines pecuniary as
“consisting of money; exacting in money.” New Shorter Oxford English Dictionary
2136 (4th ed. 1993).
[51] Surface testified that the property the Battershells converted had little to no
value and the only value was sentimental. Tr. p. 38. A sentimental loss with no
monetary value is not a pecuniary loss. For this reason, we conclude that the
trial court erred when it awarded attorney fees to Surface.5 See Coleman, 949
N.E.2d at 870. We therefore reverse the attorney fee award and remand for
proceedings consistent with this opinion.
Conclusion
[52] The trial court acted within its discretion when it set aside the summary
judgment entered in the Battershells’ favor. The court’s findings that the
Battershells breached the lease and converted Surface’s property are supported
5
Therefore, we need not address Surface’s claim in his cross-appeal that the trial court should have awarded
him additional attorney fees.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 22 of 23
by the evidence. We also affirm the trial court’s zero-damage award, but as a
result, must reverse the trial court’s decision to award Surface attorney fees.
[53] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 23 of 23