MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Aug 18 2015, 9:30 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Patrick A. Duff                                           Kevin R. Patmore
Duff Law, LLC                                             Patmore Law Office
Evansville, Indiana                                       Santa Claus, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Warren David Berglund,                                   August 18, 2015

Appellant,                                               Court of Appeals Case No.
                                                         74A01-1409-PL-388
        v.                                               Appeal from the Spencer Circuit
                                                         Court

Victoria L. Schutzius,                                   The Honorable Jon A. Dartt, Judge
Appellee.
                                                         Cause No. 74C01-1009-PL-539




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 1 of 21
[1]   Warren David Berglund appeals the trial court’s order that he become the sole

      owner of certain real estate subject to a lien in favor of Victoria L. Schutzius

      and denying his counterclaims for breach of fiduciary duty, conversion, and

      unjust enrichment. Berglund raises two issues which we revise and restate as:


            I.    Whether the trial court erred when it ordered that Berglund become
                  the sole owner of certain real estate subject to a lien in favor of
                  Schutzius; and

           II.    Whether the trial court erred in denying his counterclaim.


      We affirm.


                                      Facts and Procedural History

[2]   Berglund and Schutzius met in 1976 or 1977 in Atlanta, Georgia. At some

      point, Berglund received a degree in economics and graduated from

      chiropractic college. In 1994, Berglund set up a chiropractic practice in Virginia

      Beach, Virginia. In 1996, Schutzius began working for Berglund as an office

      manager in his chiropractic office.


[3]   At some point, Berglund and Schutzius purchased a house on Ebb Tide Road in

      Virginia and a lot in the City of Nags Head, North Carolina. Berglund

      purchased a house on Elizabeth Street in Kill Devil Hills, and Schutzius’s name

      was added to the deed for that house. At some point, Berglund and Schutzius

      sold the house in Virginia Beach and each had a gain of $113,500, for a total

      profit of $227,000. Berglund and Schutzius also sold the house in Kill Devil

      Hills on a “1031 real estate exchange” for a total gain of $123,984. Transcript

      at 33.
      Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 2 of 21
[4]   In 2004, Berglund suffered a cervical spine injury. Berglund was taped up every

      day “with an ace bandage from [his] chest down to try to be able to take care of

      things,” but eventually Berglund had “hard trouble using [his] left arm and left

      leg . . . .” Id. at 26. Due to health issues, he gave up his chiropractic practice.


[5]   In December 2004, Berglund gave Schutzius power of attorney over his affairs

      when he “started not to be able to do anything.” Id. at 27. The power of

      attorney granted Schutzius the right to “sell, convey, mortgage, hypothecate,

      pledge, quitclaim, or otherwise encumber or dispose of any part or parts of

      [Berglund’s] property, real or personal, or any interest which [he] may have

      therein, upon such terms as [she] may think proper.” Defendant’s Exhibit 1.

      The power of attorney also stated:

              GIVING AND GRANTING unto my said attorney full power and
              authority to do and perform all and every act, deed, matter, and thing
              whatsoever in and about my estate, property and affairs, as fully and
              effectually to all intents and purposes as I might or could do in my
              own proper person if personally present, the above specially
              enumerated powers being in aid and exemplication [sic] of the full,
              complete and general power herein granted and not in limitation or
              definition thereof; and hereby ratifying all that my said attorney shall
              lawfully do or cause to be done by virtue of these presents . . . .


      Id. After Berglund’s signature, the power of attorney indicates that it was

      signed in Virginia and the notary public stamp indicates it was notarized in the

      Commonwealth of Virginia.


[6]   Schutzius became Berglund’s cook, nurse, housekeeper, and financial record

      keeper, and she took care of all of his affairs including purchasing groceries. In

      Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 3 of 21
      approximately 2006, Berglund and Schutzius moved to southern Indiana.

      Schutzius transported Berglund to Louisville and Indianapolis to different

      doctor appointments. In 2006, Berglund and Schutzius purchased property at

      Hevron Drive in Santa Claus, Indiana (the “Hevron Property”) with a “real

      estate like-kind exchange.” Id. at 53. Berglund and Schutzius intended to use

      the Hevron Property as a rental property and that Schutzius’s daughter, Rachel

      Atchison, and Rachel’s husband, Dale Atchison, would rent the property. On

      November 30, 2007, in a document titled “QUITCLAIM DEED,” Schutzius

      and Berglund by Schutzius, his “attorney in fact,” released and quitclaimed the

      Hevron Property for “the sum of One Dollar ($1.00) and other good and

      valuable consideration” to themselves and the Atchisons. Defendant’s Exhibit

      7. On June 27, 2008, in a document titled “DEED,” Schutzius, the Atchisons,

      and Berglund by Schutzius, “his attorney in fact,” conveyed the Hevron

      Property to the Atchisons for “the sum of One Dollar ($1.00) and other

      valuable consideration paid . . . .” Defendant’s Exhibit 8.


[7]   In 2008, Berglund told Schutzius that she could buy the Atchinsons a vehicle.

      Schutzius purchased a Honda CR-V and drove Berglund to doctor’s

      appointments, errands and trips, and also used the vehicle to go to work to

      support Berglund.


[8]   In 2009, Schutzius and Berglund purchased property at 801 West Melchoir

      Drive (the “Melchoir Property”) in Santa Claus, Indiana. They owned the

      property jointly with rights of survivorship and obtained a mortgage through



      Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 4 of 21
       Navy Federal Credit Union. Berglund and Schutzius collectively put down

       $15,000, and Berglund’s mother contributed some money.


[9]    In 2010, Schutzius transferred the Nags Head property back to Berglund. She

       moved out of the house on Melchoir Drive in November 2010. At some point

       after Berglund and Schutzius separated, Schutzius told Berglund that he could

       have the house at Melchoir Drive.1


[10]   On September 14, 2010, Schutzius filed a complaint against Berglund and Navy

       Federal Credit Union. Schutzius alleged that she and Berglund were the

       owners, as joint tenants with rights of survivorship, of the Melchoir Property,

       that the Melchoir Property required partition pursuant to Ind. Code § 32-17-4-1,

       and that Berglund’s control of and refusal to return her property constituted the

       execution of unauthorized control over her property.


[11]   On December 7, 2010, Berglund filed a response and alleged counterclaims

       including breach of fiduciary duty, conversion, and unjust enrichment.


[12]   On July 7, 2014, the court held a trial. When asked why he gave Schutzius

       power of attorney in 2004, Berglund answered:

                  You know I – like I said I just – just got to the point where it was just a
                  struggle to be alive and you know my concerns at that point were you
                  know trying to keep my head you know together and you know I say
                  that like going to you know the bathroom or trying to take a shower or
                  bath were like horrifying for me because I was so sick. I was in



       1
           At trial, Schutzius testified that she wanted the house sold and the proceeds divided.


       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015        Page 5 of 21
        constant tremendous pain so I just couldn’t perform. I couldn’t do
        anything really and you know I thought that would – you know I
        didn’t really know what to do and [Schutzius] said that she would help
        me out so.


Transcript at 29. When asked to explain his physical, mental, and

psychological condition when he was disabled, Berglund stated:

        [A]fter like at the end of 2004, I just got you know getting worse and
        worse where I could hardly walk and I actually had to be pushed
        around in a wheelchair for awhile. . . . I believe that the steroid drugs
        possibly knocked out my adrenal glands so I could not take in water.
        It was terrible. I mean I couldn’t absorb any water. I was in the
        hospital many times getting I-Vs to get me kind of bring me back to
        live for awhile. But it – it was bad. It was a very bad situation.


Id. at 46. Berglund testified that he did not agree to the transfer of the Hevron

Property, and that he was asking for damages of $31,496 for social security

benefits he received because a part of it was spent to buy a Honda in 2008. He

acknowledged that Schutzius drove him to doctor’s appointments, bought

groceries, took him on errands and trips, and used the vehicle to go to work to

support him. He testified that he told her that she could buy “us” a vehicle. Id.

at 75. Berglund also testified that he was requesting the return of the $113,500

which he received in gain from the sale of the Virginia residence, which was

used by Schutzius to buy property that he no longer owns. He stated his

assumption that Schutzius used the money to buy the Hevron Property,

purchase a car for her daughter, and buy various kitchen appliances.




Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 6 of 21
[13]   Schutzius testified that the Atchisons were placed on the deed for the Hevron

       Property “[i]n case something happened to us it would go to them without a

       bunch of rigmarole.” Id. at 110. She stated that her granddaughters referred to

       Berglund as “PopPop.” Id. at 116. She testified that the Hevron Property was

       placed strictly in the Atchisons’ names because Berglund was “insistent that he

       was you know he was dying and he wanted them taken care. He didn’t want

       them to have any worries. He wanted to have them and the girls a place to live

       and he didn’t want his family to get a hold of anything that was his.” Id. at 111-

       112. She also testified that she signed the deed because Berglund would never

       show up to sign anything. When asked why Berglund did not sign the deed

       transferring the property to the Atchisons, Schutzius answered: “You tell me.

       You deal with him. He wouldn’t get out of the house to do anything. I mean I

       don’t know what to tell ya. He was too busy dying.” Id. at 114.


[14]   Schutzius introduced, and the court admitted, her journal, kept for years 2004

       to 2009. She testified that she and Berglund talked about acquiring a more

       comfortable vehicle, that he told her to buy another vehicle, that she paid

       medical bills for him, and that he had no income other than $2,000 a month.

       She also testified that he probably had over $250,000 in medical bills over eight

       or nine years.


[15]   Schutzius stated that a rehab center in Utah indicated that Berglund was faking

       his illness and that she witnessed Berglund “crawl across the floor one minute

       and get up and go make popcorn the next.” Id. at 138. She also testified that

       the relationship fell apart because Berglund became meaner, knocked her

       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 7 of 21
       around, and she “had put in almost seven (7) years working with him and

       trying to get him better and it just – I was done. There’s only so much a person

       can take.” Id.


[16]   On August 11, 2014, the court entered an order that Berglund be the sole owner

       of the Melchoir Property subject to a lien of $7,500 in favor of Schutzius and

       denying Berglund’s counterclaims. Specifically, the court’s order states:

               1. This is not a case where partition for real estate is appropriate as
                  much of the down payment for the joint property was made by a
                  third party ([Berglund’s] mother) and [Schutzius] only resided with
                  [Berglund] in the joint real estate for about the first one and one-half
                  (1 ½) years after purchase and [Berglund] has lived in the real estate
                  alone and paid all mortgage payments, taxes, maintenance, and
                  insurance for the last three (3) years and nine (9) months. Under the
                  circumstances, it would be inappropriate for [Schutzius] to receive
                  one-half (1/2) of the equity as requested and would cause [Berglund]
                  who is ill and on limited income to have to move from the residence.

               2. Instead, the Court chooses to treat this case similar to a dissolution
                  action even though the parties in this case have never married but
                  lived together in a long term relationship for years. [Schutzius’s]
                  Count 1 requested Partition and “all other relief just and proper in
                  the premises”. Instead of partition, the Court finds [Schutzius] is
                  entitled to the return of her portion of the down payment which she
                  testified she believe [sic] totaled $15,000.00 from both parties, or
                  $7,500.00 as her portion. This manner of distribution is consistent
                  with how the parties treated and/or divided other real estate and/or
                  investments and keeps the parties from having to expend additional
                  fees for appraisers, realtors, and attorneys.

               3. [Berglund] shall be the sole owner and possess the real estate at 801
                  W. Melchoir Drive, Santa Claus, Indiana 47579 in Spencer County,
                  State of Indiana subject to a lien in the amount of $7,500.00 to
                  [Schutzius].

               4. [Schutzius] shall have a judgment against [Berglund] in the amount
                  of $7,500.00. [Berglund] shall satisfy said judgment by paying
                  regular monthly payments to [Schutzius]. [Berglund] shall pay said
                  judgment in full within two (2) years of the date of this Order or the

       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 8 of 21
            real estate shall be listed with a realtor and sold at fair market value
            to pay off said judgment lien. This Order allows [Schutzius] to
            recover her interests in the real estate and allows [Berglund] to
            remain there and be the owner of the increase in equity as he
            continues to pay down the mortgage.

        5. [Schutzius] shall also be entitled to her court costs of $159.00 and
           post-judgment interest.

        6. [Berglund’s] Counterclaim is denied in full as there was insufficient
           evidence to support [Berglund’s] claims. [Schutzius] had a valid
           power of attorney from [Berglund] to act for him financially and the
           Court did not find sufficient evidence that she exceeded her
           authority, committed self-dealing, or misappropriated his assets.
           [Schutzius] was juggling a difficult financial situation with
           [Berglund] who was in poor health and expenses such as medical
           expenses exceeded the parties’ incomes. She received his input on
           most decisions and he has Economics degree(s) from college. A
           major asset in dispute was a certain piece of real estate known as the
           Hevron Road property which ultimately ended up being transferred
           to [Schutzius’s] daughter and son-in-law. The evidence shows that
           said property was purchased almost entirely from [Schutzius’s]
           monies and not [Berglund’s] monies and that any of [Berglund’s]
           interest in said property was intended to be a gift to [Schutzius’s]
           daughter and son-in-law who also had helped [Berglund] during his
           illness several times such as with transportation. Once a gift is made
           it cannot be rescinded later absent a legal justification which has not
           been proven in this case.

        7. The Court finds [Berglund] takes nothing by way of this
           Counterclaim.

        8. [Schutzius] shall further possess and be the owner of the Chicago
           Bulls poster and a certain piece of antique furniture (a dresser) she
           had before she moved into 801 W. Melchoir.

        9. [Berglund] shall further possess and be the owner of the dishes in the
           attic (Aunt Dot), the Clinical Kinesiology manuals, and all garage
           door openers for 801 W. Melchoir.

        10. Otherwise, the parties shall possess and be the owners of all property
            in their individual possessions as previously divided.

Appellant’s Appendix at 29-31.


Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 9 of 21
[17]   On August 19, 2014, Schutzius filed a motion for relief from judgment

       requesting that the court amend its judgment to provide a time during which

       Berglund shall refinance or otherwise cause the release of Schutzius from the

       mortgage debt. On August 20, 2014, the court entered an amended order

       clarifying its prior order as follows:

               The Court’s intention in its August 11, 2014 Judgment is that
               [Berglund] shall continue to possess, pay for, and hold harmless and
               indemnify [Schutzius] on the joint debt secured by the 801 W.
               Melchoir Drive property owed to Navy Federal Credit Union.
               [Berglund] shall make all reasonable efforts to refinance or otherwise
               cause the release of [Schutzius] from the mortgage debt within ninety
               (90) days of the date of the Judgment and continuing thereafter. The
               Court was unsure if [Berglund’s] financial condition allowed him to
               refinance into his name alone immediately which is why the Court
               ordered the two year frame from the judgment by which time the
               property must either be refinanced or [Schutzius] be released from the
               debt in order to avoid sale of the real estate. In all other respects, the
               Court’s prior Order remains in full force and effect.


       Id. at 34.


                                                    Discussion

[18]   Where, as here, the trial court has entered findings of fact and conclusions

       thereon sua sponte, the findings only control as to the issues they cover.

       McKibben v. Hughes, 23 N.E.3d 819, 825 (Ind. Ct. App. 2014), reh’g denied, trans.

       denied. We will not set aside its findings and conclusions unless they are clearly

       erroneous. Id. On appeal from an adverse judgment, the findings are clearly

       erroneous if they are not supported by substantial evidence of probative value.



       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 10 of 21
       Id. In determining whether the findings and judgment are clearly erroneous, we

       will neither weigh the evidence nor judge witness credibility. Id.


                                                          I.


[19]   The first issue is whether the trial court erred when it ordered that Berglund

       become the sole owner of the Melchoir Property subject to a lien in favor of

       Schutzius. Berglund argues that the trial court erred when it ordered him to pay

       $7,500 to Schutzius as a repayment for her contribution of a down payment for

       that property. He contends that any contribution by Schutzius to the Melchoir

       Property should be treated as a gift, and that Schutzius told him that he could

       have the home. He states that Schutzius acknowledged during her testimony

       that he contributed $20,000 toward the purchase of the Hevron Property for

       which she was never ordered to reimburse him, and that his contribution to the

       relationship was substantial.


[20]   Schutzius states that “[a]s [she] simply desires that the relationship be

       terminated as expeditiously as possible, she did not cross-appeal the Trial

       Court’s Judgment on this matter.” Appellee’s Brief at 6. She requests that to

       the extent this court finds error and reverses the trial court’s resolution

       regarding the Melchoir Drive home, we should remand with instruction to sell

       that home according to the partition statutes.


[21]   We note that while Berglund cites authority in the standard of review section of

       his brief, he does not cite any authority or the record in the discussion section of

       his argument. We remind Berglund that Ind. Appellate Rule 46(A)(8)(a)

       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 11 of 21
       provides that “[e]ach contention must be supported by citations to the

       authorities, statutes, and the Appendix or parts of the Record on Appeal relied

       on, in accordance with Rule 22.”


[22]   The record reveals that Schutzius testified that Berglund probably had over

       $250,000 in medical bills over eight or nine years, that she paid those medical

       bills, and that a single tax return for 2006, the only tax return admitted at the

       hearing, indicates medical and dental expenses of $46,525. Schutzius became

       Berglund’s cook, nurse, housekeeper, and financial record keeper, and she took

       care of all of his affairs including purchasing groceries. She transported him to

       Louisville and Indianapolis for doctor appointments. Schutzius testified that

       she and Berglund put down about $15,000 as a down payment for the Melchoir

       Property. Based upon the record, we cannot say that the trial court erred in

       ordering that Berglund become the sole owner of the Melchoir Property subject

       to a lien of $7,500 in favor of Schutzius.


                                                         II.


[23]   The next issue is whether the trial court erred in denying Berglund’s

       counterclaim. Berglund argues that the court erred when it denied his claims

       for breach of fiduciary duties, conversion, and unjust enrichment. We will

       address each separately.


       A. Breach of Fiduciary Duties




       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 12 of 21
[24]   Berglund argues that Schutzius breached her fiduciary duty to him because she

       used her power of attorney to disburse his assets through self-dealings that were

       not at arm’s length. Without citation to the record, he asserts that Schutzius

       purchased a new Honda CR-V for $29,000 with his money, titled it in her

       name, and never returned the vehicle after the power of attorney was

       terminated. He also asserts that Schutzius did not properly manage the Hevron

       Property and improperly transferred the Hevron Property to her daughter and

       son-in-law.


[25]   Schutzius argues that the conveyance of the Hevron Property was not self-

       dealing because she did not receive any benefit from the transfer. She also

       contends that Berglund specifically testified that he instructed her to purchase a

       vehicle and that it is irrelevant whose name the vehicle was titled in because it

       was later sold in the course of the relationship. In his reply brief, Berglund

       contends that it is ludicrous to think that Schutzius would not benefit from her

       daughter and son-in-law having a piece of property gifted to them. He also

       points out that the Hevron Property was acquired through an exchange with the

       undisputed purpose of being a rental property.


[26]   At the time of the transfer of the Hevron Property, Ind. Code § 30-5-3-2

       provided that “[a] power of attorney is valid if the power of attorney was valid

       at the time the power of attorney was executed under . . . [t]he law of another




       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 13 of 21
       state or foreign country.”2 The power of attorney was executed in Virginia, and

       Berglund does not argue that it was not executed under Virginia law. In 2009,

       the legislature enacted Ind. Code § 30-5-3-6, which provides:

                  The meaning and effect of a power of attorney are determined by the
                  law of the jurisdiction indicated in the power of attorney. In the
                  absence of an indication of jurisdiction, the meaning and effect of a
                  power of attorney are determined by the law of the jurisdiction in
                  which the power of attorney was executed.


       Berglund cites Indiana law and makes no argument that the law of Virginia

       should apply and does not direct us to relevant Virginia law to suggest that

       Schutzius lacked the authority under the power of attorney to transfer the

       Hevron Property. Indeed, Berglund does not argue that the language in the

       power of attorney or its meaning and effect precluded Schutzius from taking

       certain actions including transferring the Hevron Property. Rather, he focuses

       on whether Schutzius breached her fiduciary duties.


[27]   To the extent Berglund argues that Schutzius breached her fiduciary duties as

       an attorney in fact under Indiana law, we will address his argument. Ind. Code

       § 30-5-6-2 provides that “[e]xcept as otherwise stated in the power of attorney,

       the attorney in fact shall use due care to act for the benefit of the principal under

       the terms of the power of attorney.” Ind. Code § 30-5-6-3 provides that “[a]n

       attorney in fact shall exercise all powers granted under the power of attorney in




       2
           Subsequently amended by Pub. L. No. 143-2009, § 24 (eff. July 1, 2009).


       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 14 of 21
       a fiduciary capacity.” See also In re Estate of Rickert, 934 N.E.2d 726, 730 (Ind.

       2010) (“A person holding a power of attorney is in a fiduciary relationship to

       the person granting the power.”). “A holder of a power of attorney is a

       fiduciary and therefore any transaction in which the holder uses a power of

       attorney to transfer assets to the holder is presumed invalid.” Id. at 727.


[28]   At common law, a transaction in which a party uses her position as attorney-in-

       fact in a self-dealing manner is presumed to be invalid. Id. at 730. This

       presumption has statutory support. Id. Ind. Code § 30-5-9-2 is titled “Attorney

       in fact benefiting from act; individual or conflicting interests” and provides:

               (a) An attorney in fact who acts with due care for the benefit of the
               principal is not liable or limited only because the attorney in fact:
                        (1) also benefits from the act;
                        (2) has individual or conflicting interests in relation to the
                        property, care, or affairs of the principal; or
                        (3) acts in a different manner with respect to the principal’s and
                        the attorney in fact’s individual interests.
               (b) A gift, bequest, transfer, or transaction is not presumed to be valid
               or invalid if the gift, bequest, transfer, or transaction:
                        (1) is:
                                  (A) made by the principal taking action; and
                                  (B) not made by an attorney in fact acting for the
                                  principal under a power of attorney; and
                        (2) benefits the principal’s attorney in fact.


       In other words, Ind. Code § 30-5-9-2(b) “eliminates the presumption of

       invalidity of a ‘gift, bequest, transfer, or transaction’ between the principal and

       the attorney-in-fact only if it is ‘made by the principal’ and ‘not made by an

       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 15 of 21
       attorney-in-fact acting for the principal under a power of attorney.’” 934

       N.E.2d at 730. “If undue influence is presumed, the burden ‘then shifts to the

       dominant party to demonstrate, by clear and unequivocal proof, that the

       transaction was voluntary and fair.’” Id. at 730 (quoting 4 HENRY’S INDIANA

       PROBATE LAW AND PRACTICE § 30.18 at 155 (2009)).


[29]   Even assuming that Schutzius’s act of signing the deed transferring the Hevron

       Property as Berglund’s attorney in fact constituted an act of self-dealing, we

       conclude that she met her burden of demonstrating that the transaction was

       voluntary and fair. Schutzius testified that the deed was placed in her daughter

       and son-in-law’s names because Berglund

               was insistent that he was you know he was dying and he wanted them
               taken care. He didn’t want them to have any worries. He wanted to
               have them and the girls a place to live and he didn’t want his family to
               get a hold of anything that was his. So that’s why we did it.


       Transcript at 111-112. The following exchange also occurred during the cross-

       examination of Schutzius:

               Q      Ma’am I guess what the particular is here if this is $195,000.00
               house – so you’re saying that Mr. Berglund with his health issues and
               his inability to earn money he made a gift of – of that much money to
               someone not related to him?
               A        Uh huh. (Affirmative Response).


       Id. at 114-115. Moreover, we note that Schutzius’s journal, which clearly

       contains self-serving declarations, was admitted into evidence without

       objection, and an entry in the journal dated September 29, 2007 states:

       Court of Appeals of Indiana | Memorandum Decision 74A01-1409-PL-388 | August 18, 2015   Page 16 of 21
               [Berglund] wants me to promise to go on without him, to take care of
               the dogs, to take care of Rachel and the girls, to be happy, to move on,
               to have a good life. I asked him why he believes he’s dying and all he
               says is that he can feel his body giving out on him and he doesn’t think
               it’s going to be able to hold up much longer. He wanted me to
               promise him that Rachel and the girls live a long and happy life in
               their new home, and he wishes PopPop was going to be around to see
               them all grow up.


       Plaintiff’s Exhibit A at 21. The trial court heard both Berglund and Schutzius

       testify and was able to review the journal, and we cannot reweigh the evidence.

       Based upon the record, we cannot say that the trial court erred in determining

       that the transfer of the Hevron Property was not a breach of Schutzius’s

       fiduciary duty. See Am. Savings, FSB v. Tokarski, 959 N.E.2d 909, 916 (Ind. Ct.

       App. 2011) (holding that, if an act by a holder of a power of attorney of

       depositing cashier checks into his own account was presumptively invalid, the

       deposition and affidavit of the holder of the power of attorney indicating that

       the grantor of the power of attorney intended him to have the money

       constituted sufficient evidence to rebut the presumption of invalidity), reh’g

       denied, trans. denied.


[30]   To the extent Berglund argues that Schutzius breached her fiduciary duties with

       respect to the vehicle, the record reveals that Schutzius and Berglund talked

       about acquiring a more comfortable vehicle, that Berglund told her to buy

       another vehicle, and that she drove Berglund to doctor appointments, took him

       on errands, and used the vehicle to go to work to support him. With respect to

       his argument that Schutzius had access to funds totaling $206,988 and that he


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       had nothing when the power of attorney was terminated, we observe that

       Schutzius testified that Berglund probably had over $250,000 in medical bills

       over eight or nine years and that she paid them, and a tax return for 2006 alone

       indicates medical and dental expenses of $46,525. We cannot say that the trial

       court erred in determining that Schutzius did not breach her fiduciary duties.


       B. Conversion


[31]   Ind. Code § 35-43-4-3 provides that a person commits criminal conversion

       when he or she knowingly or intentionally exerts unauthorized control over the

       property of another person. Pursuant to Ind. Code § 34-24-3-1, a person who

       suffers a pecuniary loss as a result of a violation of Ind. Code § 35-43-4-3 may

       bring a civil action against the person who caused the loss. A criminal

       conviction for conversion is not a condition precedent to recovery in a civil

       action for conversion. Breining v. Harkness, 872 N.E.2d 155, 159 (Ind. Ct. App.

       2007), reh’g denied, trans. denied. Rather, a claimant must merely prove

       commission of the crime by a preponderance of the evidence. Id.; see also

       French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156, 1166 (Ind. Ct. App.

       2008).


[32]   Without citation to the record, Berglund asserts that Schutzius used his

       resources in the amount of $206,998 to acquire various assets and make

       purchases, and refers to the Honda CR-V and a Scottrade account that he had

       at one point. He does not discuss his medical expenses. With respect to the

       Honda CR-V, Schutzius testified that she and Berglund talked about acquiring a


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       more comfortable vehicle, that Berglund told her to buy another vehicle, and

       that she drove Berglund to doctor appointments. Under the circumstances, we

       cannot say that the trial court erred in denying Berglund’s claim of conversion.

       See Breining, 872 N.E.2d at 159 (finding that the evidence was insufficient to

       prove that the appellant’s stepbrother had exercised unauthorized control over

       the money of the appellant’s mother).


       C. Unjust Enrichment


[33]   Berglund contends that based upon Schutzius’s spending of his funds to

       purchase a vehicle, the Hevron Property, and “various unknown items, it would

       be a great manifest of injustice to allow [Schutzius] to benefit from all of these

       things.” Appellant’s Brief at 17. Schutzius posits that Berglund’s claim rests

       upon the assumption that none of his share of the funds was spent on his

       medical or other living expenses but was invested entirely in the Hevron

       Property.


[34]   “A claim for unjust enrichment ‘is a legal fiction invented by the common law

       courts in order to permit a recovery . . . where the circumstances are such that

       under the law of natural and immutable justice there should be a recovery . . .

       .’” Zoeller v. East Chicago Second Century, Inc., 904 N.E.2d 213, 220 (Ind. 2009)

       (quoting Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind. 1991)), reh’g denied, cert.

       denied, 502 U.S. 1094, 112 S. Ct. 1170 (1992). “A person who has been unjustly

       enriched at the expense of another is required to make restitution to the other.”

       Id. (quoting RESTATEMENT OF RESTITUTION § 1 (1937)). “To prevail on a


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       claim of unjust enrichment, a claimant must establish that a measurable benefit

       has been conferred on the defendant under such circumstances that the

       defendant’s retention of the benefit without payment would be unjust.” Id.

       Principles of equity prohibit unjust enrichment of a party who accepts the

       unrequested benefits another person provides despite having the opportunity to

       decline those benefits. Turner v. Freed, 792 N.E.2d 947, 950 (Ind. Ct. App.

       2003). “One who labors without an expectation of payment cannot recover in

       quasi-contract.” Sonnenburg, 573 N.E.2d at 408. See also 9 ARTHUR, INDIANA

       PRACTICE § 17.21 (2010) (“A benefit gratuitously conferred upon the other

       party is not unjust enrichment.”). A party who cohabitates with another person

       without subsequent marriage is entitled to relief upon a showing of an express

       contract or a viable equitable theory such as an implied contract or unjust

       enrichment. Turner, 792 N.E.2d at 950 (citing Bright v. Kuehl, 650 N.E.2d 311,

       315 (Ind. Ct. App. 1995), reh’g denied).


[35]   In order to prevail on a claim for unjust enrichment, Berglund needed to show

       that a measurable benefit had been conferred on Schutzius under such

       circumstances that Schutzius’s retention of the benefit without payment would

       be unjust. See Bright, 650 N.E.2d at 316. Based upon the record, we cannot say

       that Berglund met his burden. We therefore find no error in the trial court’s

       denial of Berglund’s claim of unjust enrichment.


                                                   Conclusion

[36]   For the foregoing reasons, we affirm the order of the trial court.


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Crone, J., and Pyle, J., concur.




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