MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jan 29 2020, 8:49 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.


ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
William H. Mullis                                         Jennifer Tucker Young
William H. Mullis, P.C.                                   Tucker and Tucker, P.C.
Mitchell, Indiana                                         Paoli, Indiana

John-Paul H. Isom
Isom Law Office, P.C.
Paoli, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Wanda M. Self and Anthony L.                              January 29, 2020
Self,                                                     Court of Appeals Case No.
Appellants-Defendants,                                    19A-PL-811
                                                          Appeal from the Orange Circuit
        v.                                                Court
                                                          The Honorable Joseph L.
The Estate of Ralph E. Collins,                           Claypool, Special Judge
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          59C01-1607-PL-178



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020                   Page 1 of 9
                                             Case Summary
[1]   Following a bench trial, the trial court concluded that Wanda M. Self and her

      son Anthony L. Self converted $35,000 that belonged to the late Ralph E.

      Collins, and the court awarded Collins’s estate (“the Estate”) $87,500 in

      damages plus $20,000 in attorney’s fees. The Selfs now appeal, arguing that the

      trial court erred in concluding that they converted Collins’s property. We

      reverse the trial court’s ruling as to Anthony but affirm it as to Wanda.


                                  Facts and Procedural History
[2]   The relevant facts are undisputed. Wanda and Collins lived together as a

      couple for thirty years, during which she prepared and signed practically all

      checks for a checking account owned by Collins, for which she was Collins’s

      agent. In August 2006, Wanda wrote a check on the account for $34,000; the

      check was made out to Wanda and purportedly signed by Collins but was

      actually signed by Wanda. Wanda deposited the funds into a joint checking

      account bearing her name and Anthony’s name. Wanda then wrote a check on

      that account to purchase a $20,000 certificate of deposit issued in her name and

      Anthony’s name. The certificate of deposit signature card, which is signed only

      by Wanda, states that it is a joint account with rights of survivorship. Ex. Vol.

      at 44. In February 2011, Wanda wrote another check on Collins’s account for

      $1000; the check was made out to cash and purportedly signed and endorsed by

      Collins but was actually signed and endorsed by Wanda. Wanda did not tell

      Collins about any of these transactions.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020   Page 2 of 9
[3]   In 2012, Wanda became a joint owner of Collins’s account. In 2016, Collins

      discovered that his account was depleted. In July of that year he filed a

      complaint against Wanda and Anthony alleging undue influence and

      requesting the imposition of a constructive trust. 1 In September 2016, the Selfs

      filed a motion to dismiss for failure to state a claim pursuant to Indiana Trial

      Rule 12(B)(6), which the trial court denied. In March 2017, Collins filed an

      amended complaint alleging conversion. Collins died in May 2017, and the

      Estate was substituted as plaintiff.


[4]   A bench trial was held in July 2018. The Selfs requested findings of fact and

      conclusions thereon pursuant to Indiana Trial Rule 52(A). In October 2018,

      the trial court issued an order that sets out the foregoing facts. The court

      concluded that Wanda committed constructive fraud as Collins’s agent and

      further concluded as follows:


               7. In addressing this case, the following applies:


                        a. The principal agent relationship created a duty;

                        b. Wanda M. Self remained silent that she had
                        taken $34,000.00 from the account over which she



      1
        According to Collins’s son Thomas, Wanda was hospitalized in 2016, and Collins wanted Thomas “to get
      his checkbook and pay his bills for him.… There should have been over $300,000 [in the account, primarily
      from sales of farmland in 2006 and 2009], and there wasn’t anything to speak of.” Tr. Vol. 2 at 74, 81.
      Collins became “[v]ery upset” and confronted Wanda when she came home from the hospital. Id. at 82.
      Wanda told him “he had no money.” Id. Aside from the foregoing transactions, the trial court found that
      “[t]he depletion of cash assets indicated by the amount left for [Collins] at the time of assessment of funds
      available for [Collins] cannot, from the evidence presented, be attributable to the actions of either [Wanda or
      Anthony].” Appealed Order at 3.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020                     Page 3 of 9
                 was agent for Ralph E. Collins, when she had a
                 duty to tell Ralph E. Collins what she had done;

                 c. Wanda M. Self remained silent that she had
                 taken $1,000.00 from the account over which she
                 was agent for Ralph E. Collins, when she had a
                 duty to tell Ralph E. Collins what she had done.

                 d. Ralph E. Collins’s account was depleted by the
                 $35,000.00 which Wanda M. Self took to her son’s
                 and her benefit by filling in two (2) checks and
                 signing Ralph Collins’s name on those checks;

                 e. Ralph E. Collins lost $35,000.00; and

                 f. Defendants Wanda M. Self and her son Anthony
                 L. Self secured $35,000.00 that they should not have
                 received.


        8. Indiana code section 35-43-4-3 provides the person who
        knowingly or intentionally exerts unauthorized control over
        property of another person commits criminal conversion, a Class
        A misdemeanor. Pursuant to IC 34-24-3-1, if a person suffers
        pecuniary loss as a result of a violation of Ind. Code § 35-43, the
        person may bring a civil action against the person who caused
        the loss for an amount not to exceed three times the actual
        amount of the damages of [the] person suffering the loss[,] costs
        of the action, reasonable attorney fees, actual travel expenses,
        and compensation for lost time, among other damages.


                                          JUDGMENT


        Plaintiff, Estate of Ralph E. Collins, is entitled to and shall
        receive judgment against the defendants, Wanda M. Self and
        Anthony L. Self, in the sum of $87,500.00 (2.5 × actual damages
        of $35,000.00) together with interest from the date of this
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020   Page 4 of 9
               judgment until paid at the statutory rate. Further, Plaintiff shall
               recover and receive attorney fees and expenses attributable to the
               prosecution of this cause of action. The Court shall hold a
               hearing as to interest, attorney fees and other allowable costs and
               expenses to determine the amount thereof.


      Appealed Order at 5-6 (citation and underlining omitted).


[5]   The Selfs filed a motion to correct error, which was denied, and the trial court

      entered judgment in favor of the Estate for $20,000 in attorney’s fees plus

      interest. This appeal ensued.


                                        Discussion and Decision

          Section 1 – The trial court clearly erred in concluding that
                    Anthony converted Collins’s property.
[6]   We first address the Selfs’ argument that the trial court erred in concluding that

      Anthony converted Collins’s property. 2 Where, as here, a party has requested

      findings of fact and conclusions thereon pursuant to Trial Rule 52(A), we

      engage in a two-tiered standard of review. Bowyer v. Ind. Dep’t of Nat. Res., 944

      N.E.2d 972, 983 (Ind. Ct. App. 2011). We determine whether the evidence

      supports the findings and whether the findings support the judgment. Id. We

      will set aside the trial court’s findings and conclusions “only if they are clearly




      2
        The Selfs also argue that the Estate’s amended complaint fails to state a claim against Anthony. But they
      did not file a motion to dismiss the amended complaint pursuant to Trial Rule 12(B)(6) or raise the issue at
      trial pursuant to Trial Rule 12(H). They cite no authority for the proposition that they preserved the issue for
      appeal by summarily asserting failure to state a claim as an affirmative defense in their answer to the
      amended complaint pursuant to Trial Rule 8(C). Consequently, we do not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020                      Page 5 of 9
      erroneous, that is, if the record contains no facts or inferences supporting

      them.” Purnell v. Purnell, 131 N.E.3d 622, 627 (Ind. Ct. App. 2019), trans.

      denied. An inference may fail as a matter of law when it rests on nothing more

      than speculation or conjecture. In re M.W., 869 N.E.2d 1267, 1270 (Ind. Ct.

      App. 2007). A judgment is clearly erroneous when a review of the record

      leaves us with a firm conviction that a mistake has been made. Bowyer, 944

      N.E.2d at 983-84. We neither reweigh the evidence nor assess witness

      credibility, but consider only the evidence most favorable to the judgment. Id.

      We review legal conclusions de novo. Id.


[7]   “The elements necessary to establish a civil cause of action for conversion are

      found in the criminal conversion statute, although a plaintiff in a civil

      conversion action is required to prove those elements only by a preponderance

      of the evidence.” McKeighen v. Daviess Cty. Fair Bd., 918 N.E.2d 717, 723 (Ind.

      Ct. App. 2009). A person commits conversion by knowingly or intentionally

      exerting unauthorized control over property of another person. Ind. Code § 35-

      43-4-3(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). And “[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). To “exert control over property” is “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.” Ind. Code § 35-43-4-1(a). That




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020   Page 6 of 9
      control is unauthorized if it is exerted “without the other person’s consent[.]”

      Ind. Code § 35-43-4-1(b)(1).


[8]   The Selfs assert that the Estate presented no evidence that Anthony ever

      knowingly or intentionally exerted unauthorized control over the funds that

      Wanda withdrew from Collins’s account. We agree. Collins’s son Thomas

      testified that he did not believe that Anthony wrote any checks on Collins’s

      account and that he had “no idea” whether Anthony “was involved in taking

      any money from” Collins. Tr. Vol. 2 at 100. Anthony denied having any

      involvement in or knowledge about Wanda’s transactions involving the $34,000

      check, 3 and he was asked no specific questions about the $1000 check. The

      Selfs observe that the Estate presented no evidence that Anthony ever withdrew

      Collins’s funds, used them as collateral for a loan, received interest on them,

      benefited from them, or otherwise exerted any control over them. To the extent

      that Anthony might have “obtain[ed]” or “possess[ed]” Collins’s funds for

      purposes of Indiana Code Section 35-43-4-1(a) as a joint owner of the accounts

      into which Wanda deposited the funds, there is no evidence that such was

      knowing or intentional, as required by Indiana Code Section 35-43-4-3(a). 4




      3
        Regarding the certificate of deposit, Anthony testified that Wanda “wanted somebody on the CD in case
      something happened to her. She wanted somebody out of the family on there, and I just happened to be the
      one.” Tr. Vol. 2 at 119. When asked how his name got on the checking account into which Wanda
      deposited the $34,000, he testified, “Well, I guess they’d done that at the same time. I guess. I don’t know.”
      Id. at 120.
      4
       Anthony disputes whether he was a joint owner of the checking account, but in his deposition he did not
      contradict opposing counsel’s characterization of the account as one in which he was a “joint owner[.]” Ex.
      Vol. at 92.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020                    Page 7 of 9
      Accordingly, we hold that the trial court clearly erred in concluding that

      Anthony converted Collins’s property, and therefore we reverse the judgments

      against him. 5


          Section 2 – The trial court did not clearly err in concluding
                  that Wanda converted Collins’s property.
[9]   The Selfs also contend that the trial court erred in concluding that Wanda

      converted Collins’s property. They concede that “there is evidence in the trial

      record indicating that Wanda knowingly exerted control over [Collins’s] bank

      account” but assert that no evidence was presented that this control was

      unauthorized. Appellants’ Br. at 17. We disagree. Wanda wrote Collins’s

      signature on the checks instead of signing them as his agent, cashed the $1000

      check, and deposited the $34,000 check in an account that he did not own, all

      without Collins’s knowledge. From this evidence, a trier of fact reasonably

      could infer that Collins did not authorize Wanda’s exertion of control over his

      property. Wanda’s arguments to the contrary are merely invitations to reweigh

      the evidence, which we may not do. Therefore, we affirm the judgments

      against her. 6




      5
       We are unpersuaded by the Estate’s reliance on Clark-Silberman v. Silberman, 78 N.E.3d 708 (Ind. Ct. App.
      2017), because there is no evidence that Anthony ever knowingly or intentionally exerted control over
      Collins’s funds.
      6
       Consequently, we need not address Wanda’s arguments regarding the trial court’s award of damages and
      attorney’s fees, which are premised on her assertion that she is not liable for conversion.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020                  Page 8 of 9
[10]   Affirmed in part and reversed in part.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020   Page 9 of 9
