MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                       Jul 03 2019, 5:59 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR                                             ATTORNEY FOR
APPELLANT/CROSS-APPELLEE                                  APPELLEE/CROSS-APPELLANT
James M. Lewis                                            Timothy J. Maher
Michael J. Hays                                           Barnes & Thornburg LLP
Tuesley Hall Konopa LLP                                   South Bend, Indiana
South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Scott David Hurwich                            July 3, 2019
1986 Irrevocable Trust;                                   Court of Appeals Case No.
                                                          18A-TR-2906
Scott D. Hurwich,
                                                          Appeal from the St. Joseph Probate
Appellant/Cross-Appellee-Plaintiff,                       Court
        v.                                                The Honorable Steven L.
                                                          Hostetler, Special Judge
Stacey MacDonald,                                         Trial Court Cause No.
                                                          71D07-1410-TR-16
Appellee/Cross-Appellant-Defendant.



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019                   Page 1 of 20
                                        Statement of the Case
[1]   Scott D. Hurwich is the settlor and sole beneficiary of the Scott David Hurwich

      1986 Irrevocable Trust (“the Trust”). In 2014, Scott filed a complaint in which

      he alleged that Stacey R. MacDonald, the former trustee of the Trust, had

      breached her fiduciary duty to Scott. Stacey filed a counterclaim in which she

      alleged that Scott had received compensation in the amount of $10,000 for

      timber that had been removed from Stacey’s property. Following a hearing, the

      probate court found in favor of Stacey on most of Scott’s claims. However, the

      court found that Stacey had wrongfully used funds from the Trust to pay two

      nontrust expenses, so the court ordered Stacey to pay Scott $416.67. The

      probate court also found for Stacey on her counterclaim and ordered Scott to

      pay Stacey $10,000 for the timber taken from Stacey’s property. The probate

      court denied both parties’ requests for attorneys’ fees.


[2]   Scott now appeals and raises four issues for our review, which we revise and

      restate as follows:


              1. Whether the probate court erred when it concluded that
                 Stacey’s legal fees were reasonable Trust expenses.


              2. Whether the probate court erred when it determined that
                 Stacey had substantially complied with the statutory
                 requirement for her to deliver Trust accountings to Scott.


              3. Whether the probate court erred when it denied his request
                 for attorneys’ fees.



      Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 2 of 20
              4. Whether the probate court erred when it found in favor of
                 Stacey on her counterclaim.


      Additionally, Stacey raises the following issue for our review:


              5. Whether the probate court erred when it denied her request
                 for attorneys’ fees.


[3]   We affirm in part, reverse in part, and remand for further proceedings.


                                  Facts and Procedural History
[4]   Scott created the Trust in 1986, and he is the only beneficiary. Scott has two

      siblings, Jeff Hurwich and Stacey, who each have their own trust. Jeff, Stacey,

      and Scott jointly owned seventeen properties located across the country. Some

      of the properties were owned in equal shares by the three trusts, and some were

      jointly owned by the three individuals.


[5]   Stacey began serving as Trustee of the Trust in 2004. While she was the

      Trustee, Stacey had control over investment accounts that contained stocks and

      other liquid Trust assets. Those investment accounts were managed by John A.

      Siberell & Company (“Siberell”). Siberell also managed the liquid assets of

      Jeff’s and Stacey’s trusts. Stacey would periodically transfer an equal amount

      of funds from all three trust accounts at Siberell into a bank account at

      KeyBank that Stacey controlled. Stacey then used the funds in the KeyBank

      account to manage the assets that were jointly owned. Stacey also served as

      Trustee of Jeff’s trust for some period of time.



      Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 3 of 20
[6]   After a dispute arose between Jeff and Stacey regarding how Stacey was

      handling Jeff’s trust, Scott became concerned with how Stacey was handling the

      Trust. Scott attempted to talk to Stacey, but Stacey did not address his

      concerns. Scott was also unable to get a Trust accounting from Stacey.

      Accordingly, on October 12, 2012, Scott removed Stacey as Trustee.


[7]   In 2013, a dispute arose between the three siblings in relation to their real estate

      holdings. On April 9, Scott, Jeff, and Stacey entered into a mediated settlement

      agreement. Pursuant to that agreement, the three individuals partitioned the

      properties. Additionally, on June 3, 2014, Stacey became the sole owner of a

      property on Adams Road in St. Joseph County, Indiana. That property

      bordered a property on Primrose Lane that is owned by Scott. On June 16,

      Scott entered into two contracts with U.S. Timber & Veneer (“U.S. Timber”).

      One contract provided that U.S. Timber would harvest timber from Scott’s

      property on Primrose Lane in exchange for $6,000, and the other provided that

      U.S. Timber would pay Scott $4,000 in exchange for timber from another

      property. However, U.S. Timber did not harvest any trees at that time.


[8]   On October 2, Scott filed a complaint against Stacey. In relevant part, Scott

      asserted that Stacey had breached her fiduciary duty to Scott. Specifically,

      Scott alleged that Stacey had used funds from the Trust to pay for personal

      expenses and that she had refused to provide an accounting of the Trust at any

      time while she was the Trustee. Accordingly, Scott asked the probate court to

      order Stacey to deliver an accounting of the Trust to him and to award him

      damages, including costs and attorneys’ fees. In response, Stacey filed a motion

      Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 4 of 20
       to dismiss pursuant to Indiana Trial Rule 12(B)(6). The probate court granted

       Stacey’s motion and dismissed Scott’s complaint. Scott appealed.


[9]    Meanwhile, on April 7, 2015, Stacey’s husband, Terry MacDonald, received a

       phone call alerting him that there were people logging trees on Stacey’s

       property on Adams Road. Terry then went to the Adams Road property, but

       by the time he had arrived, the people were gone. Terry was able to see that

       “sap was running on the stumps and the tree tops,” which indicated that the

       trees had been “freshly cut.” Tr. Vol. II at 123. Terry later learned that U.S.

       Timber had removed the trees. 1 Accordingly, Terry contacted U.S. Timber,

       and U.S. Timber provided Terry with a copy of a check for $10,000 that they

       had paid to Scott.


[10]   On August 25, 2016, this Court held that the probate court had erred when it

       dismissed Scott’s complaint against Stacey and reversed the judgment of the

       probate court. See Hurwich v. MacDonald (In re Hurwich Trust), 59 N.E.3d 977,

       984 (Ind. Ct. App. 2016). Accordingly, the probate court reinstated Scott’s

       complaint. Stacey then filed her answer. In her answer, Stacey denied the

       allegations, and, as an affirmative defense, she asserted that Scott’s claims were

       barred by a two-year statute of limitations. Stacey also filed a counterclaim




       1
         Scott asserts that, when Terry testified at the ensuing trial as to who had cut the trees on Stacey’s property,
       the court sustained Scott’s hearsay objection. Scott is correct that the probate court sustained his objection
       when Terry first attempted to testify that his neighbor had told him who had removed the trees from his
       property. However, Stacey’s counsel rephrased the question and again asked Scott who had removed the
       trees. At that point, Scott again objected, but the probate court stated that Scott could question Terry about
       his personal knowledge and, in effect, overruled the objection.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019                         Page 5 of 20
       against Scott in which she asserted that Scott had committed conversion when

       he accepted payment for timber that had been harvested from her property.


[11]   The probate court held a hearing on October 2, 2018. Prior to the hearing,

       Scott and Stacey stipulated to the admission of the exhibits. Those exhibits

       included copies of some of the bank statements from the KeyBank account and

       copies of invoices from Stacey’s attorneys. During the hearing, Stacey testified

       that she had never prepared a Trust statement for Scott while she was Trustee.

       However, she testified that Siberell generated monthly statements that listed the

       Trust assets and their gains and losses and that they prepared a year-end

       summary each year. She also testified that she had hired Crowe Chizek

       (“Crowe”) to prepare an annual accounting of the Trust for tax purposes, which

       Crowe did every year that Stacey was Trustee of the Trust. Stacey further

       testified that she believed that Scott had received the reports from Siberell and

       Crowe every year.


[12]   Scott then questioned Stacey about the invoices from her attorneys. Stacey

       testified that the invoices were for work her attorneys had done for her between

       September of 2011 and November of 2013 and that she had paid those invoices

       from the KeyBank account. Stacey further testified that, in addition to the

       current legal dispute between her and Scott, she had previously been involved

       in other legal proceedings with family members. Scott attempted to ask Stacey

       about the scope of the work that the invoices covered, but Stacey’s attorney

       objected to the question as the description of the work provided by the attorneys

       had been redacted on all of the invoices.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 6 of 20
[13]   Scott also testified at the hearing. He testified that, when he contracted for U.S.

       Timber to harvest trees from his property, he never authorized anyone to enter

       onto Stacey’s property. He further testified that he had previously had his

       property surveyed and that the surveyor had marked the boundaries of his

       property with orange flags. He also testified that he had informed U.S. Timber

       that the orange flags marked the boundary to his property.


[14]   Following the hearing, the parties each submitted post-trial briefs. Thereafter,

       the probate court issued findings of fact and conclusions thereon. As to Scott’s

       claims, the court found that “Stacey did not directly or indirectly steal,

       misappropriate, misuse, or improperly receive, retain, or apply any of Scott’s

       assets or any assets of the Trust.” Appellant’s App. Vol. II at 11. However, the

       probate court did find that Stacey had wrongfully paid $750 for Terry’s real

       estate taxes and $500 for hay for her horses out of the KeyBank account.

       Accordingly, the probate court found that Scott “is entitled to recover from

       Stacey one-third . . . of the total of those two amounts, or $416.67.” Id. As for

       Scott’s claim that Stacey had wrongfully used funds in the KeyBank account to

       pay for her personal legal bills, the court found that “no evidence was

       introduced to support that speculation.” Id. at 13. Accordingly, the probate

       court denied Scott’s claims arising from Stacey’s payments to her attorneys.


[15]   The court also found for Stacey on Scott’s claim that she had failed to provide

       an accounting of the Trust. Specifically, the probate court found that Stacey

       was not derelict in her responsibility to provide Scott with periodic accountings

       of the Trust because Scott had received monthly and yearly statements from

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 7 of 20
       Siberell and annual tax returns from Crowe. In addition, the probate court also

       found that “Scott knew for a long time that he was not being provided other

       reports or accounting from Stacey.” Id. at 12. Because “Scott failed to take any

       action within two years after becoming aware that Stacey was not providing the

       information he desired,” his “claims arising from a lack of providing

       accountings [are] barred by the applicable two-year statute of limitations.” Id.

       at 13. Accordingly, the court only awarded Scott $416.67.


[16]   In regard to Stacey’s counterclaim, the probate court found that Scott had

       received $10,000 “from timber taken from Stacey’s property.” Id. at 16.

       However, the court found that it was an “honest error” on Scott’s part and not

       conversion, so the court declined to award treble damages to Stacey. Id.

       Accordingly, the court awarded Stacey $10,000. The court then offset the two

       awards and ordered Scott to pay Stacey $9,583.33. The court declined to award

       either party attorneys’ fees. This appeal ensued.


                                      Discussion and Decision
[17]   The parties appeal the probate court’s findings of fact and conclusions thereon

       following an evidentiary hearing. Where, as here, the court sua sponte issues

       findings and conclusions, “the specific findings control our review and the

       judgment only as to the issues those specific findings cover. Where there are no

       specific findings, a general judgment standard applies, and we may affirm on

       any legal theory supported by the evidence adduced at trial.” Trust No. 6011,




       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 8 of 20
       Lake Cty Trust Co. v. Heil’s Haven Condos. Homeowners Ass’n, 967 N.E.2d 6, 14

       (Ind. Ct. App. 2012). Further,


               [w]e apply the following two-tier standard of review to sua sponte
               findings and conclusions: whether the evidence supports the
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. We consider only the evidence favorable to the
               judgment and all reasonable inferences flowing therefrom, and
               we will neither reweigh the evidence nor assess witness
               credibility.


       Id.


                                      Issue One: Stacey’s Legal Fees

[18]   Scott first contends that the trial court erred when it concluded that Stacey’s

       legal fees were a legitimate Trust expense based on its finding that Scott’s

       claims were mere speculation and that he did not present any evidence to

       support his claims. In essence, Scott contends that the probate court wrongly

       placed the burden on him to prove that the legal fees were not a valid Trust

       expense. We must agree.


[19]   It is well settled that “a trustee bears the burden of justifying the propriety of

       items in a trust account.” Goins v. Riddle (In re Trust of Riddle), 946 N.E.2d 61,

       68 (Ind. Ct. App. 2011). Then, if the trustee makes a prima facie showing that

       the accounts are proper, the burden shifts to the beneficiaries to show specific


       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 9 of 20
       instances of impropriety. See id. Accordingly, the burden was first on Stacey to

       demonstrate that the legal fees were a legitimate Trust expense.


[20]   Here, there is no dispute that Stacey used the KeyBank account, which was

       funded in part by the Trust, to pay more than $107,000 in attorneys’ fees. But

       the only evidence Stacey presented in relation to those legal fees were invoices

       in which the description of the work performed is completely redacted. And

       Stacey did not provide any testimony to indicate that those legal bills pertained

       to services performed only in relation to the Trust. In other words, the invoices

       show only who did the legal work, not the work that was done, and there is no

       dispute that Stacey had hired the same lawyers to work on prior, unrelated

       lawsuits with which she had been involved in capacities other than her capacity

       as Trustee of Scott’s Trust. Indeed, the evidence demonstrates that, while Scott

       did not file his lawsuit against Stacey until 2014, the legal bills covered a period

       of time between 2011 and 2013 and all of the invoices listed Jeff’s name, not

       Scott’s name, in reference to the services rendered. See, e.g., Ex. at 266.

       Accordingly, we agree with Scott that Stacey did not meet her burden to show

       that the legal fees at issue were related to the Trust or were otherwise a

       legitimate Trust expense.


[21]   We agree with Scott that the trial court improperly placed the burden on him to

       prove that the legal fees were improper Trust expenses. There is no evidence to

       support the court’s determination that the fees related to the Trust. Thus, we

       hold that the probate court erred when it found that the legal fees were a

       legitimate Trust expense. Accordingly, we reverse the probate court’s finding in

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 10 of 20
       favor of Stacey on this issue, and we remand with instructions for the probate

       court to order Stacey to reimburse Scott for his share, or one-third of the legal

       fees paid from the KeyBank account.


                                            Issue Two: Accounting

[22]   Scott next asserts that the probate court erred when it found that Stacey had

       substantially complied with the statutory requirement to deliver a written

       statement of accounts to Scott because Scott received monthly and yearly

       statements from Siberell and annual tax returns from Crowe. Specifically, Scott

       contends that Stacey never provided an accounting of the Trust to Scott. He

       further contends that the statements from Siberell and Crowe did not offer any

       “insight into Stacey’s use of funds in the Key Bank account” and, as such, did

       not satisfy her reporting requirement. Appellant’s Br. at 13.


[23]   Scott is correct that Stacey had an obligation to deliver an accounting to him

       while she was Trustee of the Trust. See Ind. Code § 30-4-5-12(a) (2018). And

       there is no dispute that Stacey never delivered an accounting to Scott.

       However, the probate court did not only find in favor of Stacey on Scott’s claim

       regarding Stacey’s duty to account based on its conclusion that the statements

       from Siberell and Crowe fulfilled her reporting obligation. Rather, the probate

       court also found that “Scott knew for a long time that he was not being

       provided other reports or accounting from Stacey” and that “Scott was placed

       on notice several years before 2012 that Stacey understood her responsibility” to

       provide statements to Scott. Id. Accordingly, in addition to finding that the

       Siberell and Crowe statements met Stacey’s statutory obligation, the probate
       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 11 of 20
       court alternatively found that, “[b]ecause Scott failed to take any action within

       two years after becoming aware that Stacey was not providing the information

       he desired, Scott’s claims arising from a lack of providing accountings [are]

       barred by the applicable two-year statute of limitations.” Id. at 13.


[24]   Scott makes no argument on appeal to explain why his claims regarding

       Stacey’s failure to provide Trust accountings are not barred by a statute of

       limitations. Indeed, Scott does not even acknowledge the probate court’s

       alternate rationale for finding in favor of Stacey on his claim. As such, Scott

       has not met his burden on appeal to demonstrate that the probate court erred

       when it denied Scott’s claim that Stacey had failed to provide Trust accountings

       to him. We therefore affirm the probate court’s judgment in favor of Stacey on

       this claim.


                                   Issue Three: Scott’s Attorneys’ Fees

[25]   Scott also asserts that the probate court erred when it denied his request for

       attorneys’ fees. Specifically, Scott contends that, because “Stacey misspent trust

       funds, the probate court “should have awarded Scott his legal fees[.]”

       Appellant’s Br. at 10. We agree.


[26]   Indiana Code Section 30-4-3-11(b)(4) provides that, “[i]f the trustee commits a

       breach of trust, the trustee is liable to the beneficiary for . . . reasonable

       attorney’s fees incurred by the beneficiary in bringing an action on the breach.”

       Additionally, Indiana Code Section 30-4-3-22(e) provides that, “[i]f a

       beneficiary successfully maintains an action” to compel the trustee to redress a


       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 12 of 20
       breach of trust, “he is entitled to a judgment for reasonable attorney’s fees.”

       Further, our Supreme Court has stated that a trial court is required to award

       attorneys’ fees under those statutes. See Malachowski v. Bank One, Indianapolis,

       N.A., 682 N.E.2d 530, 532 (Ind. 1997) (holding that the beneficiaries were

       entitled to reasonable attorney’s fees after they successfully maintained an

       action for breach of trust against the trustee).


[27]   Here, the probate court found, and Stacey does not dispute, that she had

       wrongfully used the KeyBank account, which was funded in part by the Trust,

       to pay $750 of her husband’s real estate taxes and $500 for hay for her horses. 2

       Because Scott successfully maintained an action for breach of Trust against

       Stacey, Scott is entitled to a judgment for reasonable attorneys’ fees. We

       therefore reverse the probate court’s judgment denying Scott’s request for

       attorneys’ fees, and we remand to the probate court for a determination of

       reasonable attorneys’ fees to award to Scott.


                                     Issue Four: Stacey’s Counterclaim

[28]   Scott next asserts that the probate court erred when it ordered him to pay Stacey

       $10,000 based on the court’s conclusion that Scott had been paid that money

       for timber taken from Stacey’s property. We note that the probate court

       explained its reasoning but did not issue specific findings of fact on this issue.




       2
         And now, on appeal, Scott prevails on his claim that Stacey wrongfully spent over $107,000 from the
       KeyBank account on legal expenses unrelated to the Trust. Accordingly, Scott is entitled to an award of
       attorneys’ fees on that ground as well.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019                   Page 13 of 20
       Accordingly, the general judgment standard applies, and we may affirm on any

       legal theory supported by the evidence. See Trust No. 6011, Lake Cty Trust Co.,

       967 N.E.2d at 14.


[29]   Scott contends that “[t]here was no . . . evidence regarding who cut Stacey’s

       trees or when they were cut.” Appellant’s Br. at 15. We cannot agree. While

       the probate court did not expressly find that U.S. Timber had removed trees

       from Stacey’s property, that finding is implicit in the court’s judgment on

       Stacey’s counterclaim, and there is sufficient evidence in the record to support

       that inference. Terry testified that he had received a call on April 7, 2015,

       alerting him that someone was cutting trees on Stacey’s property. Terry further

       testified that, on the same day, he visited Stacey’s property and discovered that

       trees had been “freshly cut.” Tr. Vol. II at 123. And Terry testified that U.S.

       Timber had removed the trees and had provided him with copies of its contracts

       with Scott, to which the parties stipulated. Thus, contrary to Scott’s assertion,

       there is evidence in the record that U.S. Timber removed trees from Stacey’s

       property on or about April 7, 2015.


[30]   Scott next contends that the probate court erred when it ordered Scott to pay

       Stacey for the timber because “Scott did not direct anyone to go on Stacey’s

       land.” Appellant’s Br. at 16. He further asserts that, “[i]f U.S. Timber . . . went

       outside the scope of Scott’s authority and harvested trees from neighboring

       lands, it was outside its agency, and Scott is not liable for its actions.” Id. In

       essence, Scott contends that U.S. Timber was an agent but that he is not

       responsible for the actions of an agent that exceeded the scope of its authority.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 14 of 20
[31]   While Scott describes U.S. Timber as an “agent,” and Stacey does not dispute

       that characterization, the record indicates that U.S. Timber was an independent

       contractor. An independent contractor is “a person who contracts with another

       to do something for him but who is not controlled by the other nor subject to

       the other’s right of control with respect to his physical conduct in the

       performance of the undertaking.” Sword v. NKC Hospitals, Inc., 714 N.E.2d 142,

       148 (Ind. 1999). Here, U.S. Timber contracted with Scott to remove timber

       from two properties owned by Scott. And there is no evidence in the record to

       indicate that Scott exerted any control over U.S. Timber when it removed the

       timber. Indeed, Scott testified that he was out of the state at the time U.S.

       Timber harvested Stacey’s trees. All of the evidence shows that U.S. Timber

       was an independent contractor.


[32]   It is well settled that, generally, a person who hires an independent contractor is

       not liable for the acts of the independent contractor. See Barnard v. Menard, Inc.,

       25 N.E.3d 750, 755 (Ind. Ct. App. 2015). This is because the person who hires

       the contractor typically exercises little, if any, control over the means or manner

       of the works of its contractors and requires only that the completed work meet

       the specifications of the contract. See id. Because U.S. Timber was an

       independent contractor, and because Scott did not exert any control over U.S.

       Timber, Scott is not liable at law for U.S. Timber’s act of removing timber from

       Stacey’s property.


[33]   The probate court explained its judgment on Stacey’s counterclaim as follows:



       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 15 of 20
               The final issue is the claim asserted by Stacey against Scott for
               timber removed from Stacey’s separate property for which Scott
               received compensation in the amount of $10,000.00. The Court
               finds that Scott received $10,000.00 from timber taken from Stacey’s
               property, and Scott must pay that amount to Stacey. However, there
               was absolutely no evidence whatsoever that would allow the
               Court to find that Scott’s actions in receiving $10,000.00 from the
               sale of timber from Stacey’s land was done intentionally,
               recklessly, or willfully. It was not a conversion. It was an honest
               error on Scott’s part. Scott’s actions are not criminal in nature
               and do not justify the trebling of damages or an award of
               attorney fees pursuant to I.C. § 34-24-3-1. However, the timber
               proceeds belong to Stacey and judgment on Stacey’s
               counterclaim is therefore entered in favor of Stacey and against
               Scott in the amount of $10,000.00.


       Appellant’s App. Vol. II at 15-16 (emphasis added).


[34]   While the probate court did not mention unjust enrichment, the court found, in

       effect, that Scott had been unjustly enriched. The parties did not address unjust

       enrichment in their briefs. Because we may affirm on any theory supported by

       the record, see Trust No. 6011, Lake Cty Trust Co., 967 N.E.2d at 14, we will

       consider whether Scott was unjustly enriched. This court has recently stated

       that, to show unjust enrichment, “‘a plaintiff 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.’” Estate

       of Henry v. Woods, 77 N.E.3d 1200, 1207 (Ind. Ct. App. 2017) (quoting Bright v.

       Kuehl, 650 N.E.2d 311, 316 (Ind. Ct. App. 1995) (emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 16 of 20
[35]   The evidence shows that Scott contracted with U.S. Timber to remove timber

       from two of his properties; the contract price was a total of $10,000; U.S.

       Timber removed timber from Stacey’s property; and U.S. Timber paid Scott

       $10,000. From this evidence, the trial court inferred “that Scott received

       $10,000 from timber taken from Stacey’s property,” Appellant’s App. Vol. II at

       15-16, and, hence, that Scott received a measurable benefit to which he was not

       entitled. There is no direct evidence that either all or any part of U.S. Timber’s

       $10,000 payment to Scott was attributable to timber cut from Stacey’s property.

       For that matter, there is no evidence that any such payment was not for timber

       removed from Scott’s properties. The contract price was not based on whether

       more or less timber was cut, and there is no evidence that Scott received any

       additional consideration or benefit from U.S. Timber’s removal of Stacey’s

       timber beyond the contract price. There are gaps in the evidence, including

       questions that could have and should have been asked on the direct or cross-

       examination of Scott, or evidence that might have been provided by third-party

       witnesses who were not called to testify.


[36]   Nevertheless, we need not decide whether the evidence supports the trial court’s

       conclusion that Scott received a benefit for which he was not entitled because

       there is an adequate and independent reason why Stacey is not entitled to

       recover from Scott. Unjust enrichment is an equitable remedy, which is usually

       unavailable where there is an adequate remedy at law. Swami, Inc. v. Lee, 841

       N.E.2d 1173, 1178 (Ind. Ct. App. 2006). Here, again, shortly after Terry

       received a phone call in April 2015 alerting him that timber was being removed


       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 17 of 20
       from Stacey’s property, he learned that U.S. Timber had harvested the trees.

       That same day, Terry filed a police report in which he asserted that timber had

       been stolen from Stacey’s property. There is no discovery issue here. Stacey

       was on inquiry notice that her timber had been cut and had good reason to

       believe that U.S. Timber was liable for it. Stacey could have pursued a claim

       against U.S. Timber but did not. Because Stacey had an adequate remedy at

       law in 2015, she is not entitled to an equitable remedy from Scott years later. 3


[37]   In sum, the evidence shows that Stacey had been damaged by the unauthorized

       removal of timber from her property. The evidence also shows that U.S.

       Timber was acting as an independent contractor when it removed the timber

       and that Scott is not liable as a matter of law for U.S. Timber’s conduct.

       Further, because Stacey had an adequate remedy at law against U.S. Timber

       but failed to pursue it, she is not entitled to an equitable remedy against Scott,

       and the trial court erred when it ordered Scott to pay Stacey $10,000. We

       therefore reverse the trial court’s judgment on this issue.


                                    Issue Five: Stacey’s Attorneys’ Fees

[38]   Finally, Stacey contends that the probate court erred when it found that she is

       not entitled to recover attorneys’ fees from Scott. Specifically, Stacey contends




       3
         Moreover, we observe that Stacey’s action against U.S. Timber would be for the wrongful removal of her
       timber, and damages would be measured by stumpage not the contract price agreed to by Scott and the
       timber company. And Stacey would be entitled to seek an amount not to exceed three times her actual
       damages, costs of the action, a reasonable attorney’s fee, travel expenses, and other reasonable costs of
       collection. See Ind. Code § 34-24-3-1.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019                  Page 18 of 20
       that the probate court “prematurely” ruled on the issue of attorneys’ fees

       because the parties had agreed in the final pretrial order “that neither party

       would submit a fee claim until such time as the underlying matters had been

       determined.” Appellee’s Br. at 17, 19. In essence, Stacey contends that the

       probate court wrongly denied her the opportunity to file a motion for attorneys’

       fees. We cannot agree.


[39]   In the final pre-trial order, the parties agreed that “any claim for legal fees will

       be presented through a post-trial motion[.]” Appellant’s App. Vol. II at 34, n.1.

       Following the hearing, Stacey submitted a post-trial brief in which she

       extensively argued that Scott’s claims were baseless and not supported by the

       evidence. She further asserted that she had not breached her duties as Trustee.

       Accordingly, Stacey asserted in her post-trial brief that she is “entitled” to

       recover “the money she has spent defending the claims in this matter[.]” Id. at

       58.


[40]   Because the parties agreed to present any claim for attorneys’ fees in post-trial

       motions, and because Stacey filed a post-trial brief in which she requested

       attorneys’ fees for defending against Scott’s action, the probate court did not

       deny Stacey the opportunity to make her claim that she is entitled to an award




       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019   Page 19 of 20
       of attorneys’ fees. 4 We affirm the probate court’s denial of an award of

       attorneys’ fees for Stacey.


                                                       Conclusion

[41]   In sum, we hold that the probate court erred when it found that Stacey’s legal

       fees were reasonable Trust expenses. We further hold that Scott did not meet

       his burden on appeal to demonstrate that the probate court erred when it

       concluded that his claims against Stacey regarding her duty to account were

       precluded by the applicable statute of limitations. Additionally, we hold that

       the probate court erred when it declined to award Scott attorneys’ fees. As to

       Stacey’s counterclaim, the probate court erred when it ordered Scott to pay

       Stacey $10,000 for timber that U.S. Timber had harvested from her property.

       Finally, we hold that the probate court did not deny Stacey the opportunity to

       file a motion for attorneys’ fees. We therefore affirm the probate court in part,

       reverse in part, and remand with instructions.


[42]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Baker, J., and Robb, J., concur.




       4
         Stacey also asserts that a “consideration of Stacey’s fees is warranted” because she “was found not to have
       violated any of her obligations as Trustee. Appellee’s Reply Br. at 7. To the extent Stacey asserts that she is
       entitled to an award of attorneys’ fees because she successfully defended against Scott’s claims, we cannot
       agree. As discussed above, Stacey wrongfully used a bank account partially funded by Trust funds to pay for
       over $107,000 in legal fees not related to the Trust, her husband’s real estate taxes, and hay for her horses.

       Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019                      Page 20 of 20
