MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Jul 13 2016, 8:20 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  Court of Appeals
                                                                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                     ATTORNEY FOR APPELLEES
Gerald B. Coleman                                            Scott M. Penny1
Richard P. Nover                                             Carmel, Indiana
Coleman Stevenson, LLP
Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

Star Property Solutions, LLC                                 July 13, 2016
and Indy Drains, LLC,                                        Court of Appeals Case No.
Appellants/Cross-Appellees-                                  49A05-1505-CC-4122
Defendants/Counterclaimants,                                 Appeal from the
                                                             Marion Superior Court
         v.
                                                             The Honorable
                                                             John F. Hanley, Judge
Pine Financial, LLC,
                                                             Trial Court Cause No.
Appellee/Cross-Appellant-                                    49D11-1302-CC-5482
Plaintiff/Counterclaim Defendant,




1
 Scott M. Penny, who served as Appellees’ attorney at the time their brief was filed, withdrew as counsel on
March 3, 2016. Since that time, no attorney has filed an appearance for the Appellees.
2
  We note that, initially, both parties filed a notice of appeal regarding this judgment, each filing under a
separate appellate case number. However, we ultimately consolidated the two cases into Case No. 49A05-
1505-CC-412.

Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]               Page 1 of 20
      and

      T. Tad Bohlsen,
      Appellee/Cross-Appellant-

      Counterclaim Defendant.




      Kirsch, Judge.


[1]   Star Property Solutions, LLC (“Star”) and Indy Drains, LLC (“Indy Drains”)

      (together, “Tenants”)3 entered into a lease agreement (“the Lease”) to rent a

      commercial building from Pine Financial, LLC (“Pine”). T. Tad Bohlsen

      (“Bohlsen), a manager and member of Pine, negotiated the terms of the Lease.

      Pine sued Tenants for breach of contract on the basis of non-payment of the

      rent. Tenants filed an amended counterclaim against Pine and Bohlsen

      (together, “Landlords”),4 alleging breach of contract, replevin, constructive

      eviction, retaliatory eviction, conversion, and trespass. Following a bench trial,

      the trial court granted damages: (1) to Pine in the amount of $30,000.00,

      finding that Tenants had breached the terms of the Lease; and (2) to Tenants in




      3
       As explained later, Star and Indy Drains were contractually bound to pay the rent—Star as the renter and
      Indy Drains as the guarantor. Therefore, unless more specificity is required, we refer to them together as
      Tenants.
      4
       Because both Bohlsen and Pine are liable for any damages owed to Tenants, we refer to them together as
      Landlords.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]            Page 2 of 20
      the amount of $30,000.00, finding that Landlords had interfered with Tenants’

      business relationships. Tenants appeal, and Landlords cross-appeal, raising the

      following consolidated, restated, and reordered issues:


              I. Whether the $30,000.00 damages award entered in favor of
              Pine, for Tenants’ breach of contract, is within the scope of the
              evidence; and


              II. Whether the $30,000.00 damages award entered in favor of
              Tenants, on their amended counterclaim against Landlords, is
              within the scope of the evidence.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[3]   Landlords worked with investors to locate undervalued properties that could be

      purchased and resold at a higher price. The “basic investment approach”

      involved helping a property owner secure a renter; once the property established

      a positive cash flow, Landlords would approach investors, obtain funding, and

      purchase the property. Tr. at 14. Believing that a commercial building located

      on South State Street in Indianapolis (“the Building”), which was owned by

      Charles Norman Meurer (“Meurer”), was a viable undervalued property,

      Landlords offered to help Meurer secure renters.


[4]   In July or August 2012, Indy Drains’ President David Godoy (“Godoy”) and

      Vice President Tiberio Clemente approached Landlords, expressing interest in

      leasing the Building. Landlords then contacted Meurer, who agreed that Pine


      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 3 of 20
      would lease the Building from Meurer for $2,500.00 per month, and in turn,

      Pine would sublet it to Indy Drains for $2,500.00 per month. Accordingly, Pine

      entered into a lease agreement (“the Meurer Lease”), dated August 29, 2012, to

      lease the Building from Meurer, “as is,” for a two-year term, commencing on

      October 1, 2012. Pls.’ Ex. CC.


[5]   Pine agreed to lease the building to Indy Drains for a three-year term,

      commencing September 1, 2012. Appellants’ App. at 15-25. Bohlsen’s assistant,

      George Bailey, attended the September 3, 2012 meeting at which the Lease was

      signed. Prior to execution, the Lease named Indy Drains as the tenant.

      However, Godoy, hoping to build up the credit of Star, a newly formed

      corporation, asked Bailey to change the Lease by removing Indy Drains and

      adding Star as the tenant. Bailey agreed, and Star signed the Lease. Tr. at 21.

      Later, when Bohlsen learned of the change, he required Indy Drains to serve as

      Star’s guarantor. Tenants agreed and, on October 3, 2012, Indy Drains signed

      a Commercial Lease Guaranty.


[6]   Under the Lease, Pine agreed to “keep and maintain in good repair and

      working order and make repairs to and perform maintenance upon”: (a)

      structural elements of the Building; (b) mechanical (including HVAC), electrical

      service and below ground plumbing elements; (c) the roof of the Building; (d)

      exterior windows of the Building; and (e) all exterior lighting. Appellants’ App.

      at 16. Pine also promised to make certain improvements and repairs

      (“Landlord Work”), which Pine itemized in the Lease as Exhibit A. Pine

      agreed to: (a) provide a gravel parking lot in back; (b) provide fencing around

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 4 of 20
      the gravel parking lot; (c) replace worn or damaged carpeting throughout the

      Building; (d) repaint scuffed or damaged walls throughout the Building; (e) add

      a three-foot entrance door in the rear wall of the Building; and (f) address

      “other items TBD.” Id. at 24. Pine agreed to complete the improvements “at

      its sole cost and expense” and within four weeks after receiving notice from

      Tenants to start the work. Id. at 16, 24. Under the Lease, Tenants’ “sole

      recourse,” in the event Pine failed to complete the Landlord Work as

      scheduled, was “a rent reduction of five hundred dollars” for each month the

      items were not completed. Id. at 16.


[7]   After signing the Lease, Tenants gave Pine two checks, each in the amount of

      $2,500.00 (one for the September 2012 rent and the other for the security

      deposit). In exchange, Pine gave Tenants a key to the Building. When Tenants

      began to move in on September 4, 2012, they found the previous tenant’s

      property, including furniture, electronics, and piles of television and computer

      monitors, still in the Building. Tr. at 155. Tenants complained to Pine that the

      Building was not as promised.


[8]   Most of Tenants’ communications with Pine were made through Bohlsen. On

      September 7, 2012, Tenants sent Bohlsen an email expressing their concern that

      none of the repairs were underway. Appellants’ App. at 28. On October 2, 2012,

      Tenants sent Bohlsen a follow-up email explaining that the previous tenant’s

      property was still in the Building, “there [were] roof leaks everywhere,” the

      front office was covered in mold, the back office still had not been painted, the

      garage door openers were not working, the parking lot and fence had not been

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 5 of 20
       completed, and there were exposed electrical wires and cracks in the walls

       through which light could be seen. Id. at 29. Tenants stated, “I am expecting a

       rent credit for this month [October 2012]. Due to the fact that everything you

       said would be completed has not been and WE STILL HAVE NOT MOVED

       OUR STUFF IN.” Id. (emphasis in original).


[9]    On October 5, 2012, Tenants removed some of the previous tenant’s furniture,

       hauled away trash and debris, trimmed the trees, changed the lock on the door

       of the workshop, and repaired the “Electric Strike (Door Opener).” Id. at 31.

       That same day, Tenants submitted to Pine an invoice for the work, in the

       amount of $2,402.50, and sent an email to Bohlsen informing him that Tenants

       had removed some of the previous tenant’s property. Tenants also asked

       Bohlsen when the prior tenant’s television and computer monitors would be

       removed5 and requested assurances “that [Pine] would be giving [Tenants] the

       rent credit that we discussed for not being able to move our stuff in and all the

       problems.” Id. at 30. Three days later, Tenants sent another email to Bohlsen,

       stating that they had not heard from him and asking Bohlsen to let Tenants

       “know where we stand with the Rent Credit since today is the 8th.” Id.


[10]   Having received no correspondence from Bohlsen regarding a credit, Tenants

       did not pay the November or December rent. Appellants’ Br. at 5 (citing Tr. at




       5
         There were approximately 1,000 television and computer monitors still in the warehouse in early October
       2012. Because these units contained mercury, it would have cost between $10 and $40 each to dispose of
       them properly. Tr. at 169.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]           Page 6 of 20
       214). The Landlord Work was completed on or about December 15, 2012.

       Appellants’ App. at 33. On January 30, 2013, Pine sent a letter to Tenants

       informing them that they had ten days to cure the default, stating, “The final

       due date for this payment will be February 9th.” Id. at 34-35. Pine advised

       Tenants that the “past due rent” was $10,000.00 for the months of October

       through January, plus late fees, notice fees, and all other fees charged under the

       Lease, including legal fees. Id. at 33-34. On February 7, 2013, Landlords sent

       Tenants a letter informing them that Landlords would be entering the premises

       on February 8, 2013 to conduct an inspection of the premises. Appellees’ App. at

       69.


[11]   On February 8, 2013, one day prior to the deadline to cure, Bohlsen ordered

       two of Pine’s employees (“the Employees”) to enter the Building. Indianapolis

       Metropolitan Police Officer Randall Cook (“Officer Cook”), who was

       responding to a security alarm at the Building encountered the Employees

       around 10:45 a.m., and the Employees explained that they were inspecting the

       Building in connection with an eviction. Tr. at 142. Officer Cook inquired

       whether they had appropriate legal papers, and when he discovered that they

       did not, he advised the Employees to leave. While he was there, Officer Cook

       saw that the Building was still occupied and noticed there were vehicles parked

       inside the gated and locked fence behind the Building. Id. at 143-44. Around

       3:30 in the afternoon of the same day, Officer Cook was again dispatched to the

       Building. There, he met Tenants, who reported that their vehicles and trailers

       were gone. Officer Cook’s investigation revealed that the back fence had been


       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 7 of 20
       cut and three vans, three trailers, and Tenants’ tools were all missing. Id. at

       145-47. While at the scene, Officer Cook spoke on the phone to Bohlsen, who

       explained that he had removed Tenants’ business property because they were

       behind on their rent. Id. at 146-47. Officer Cook advised Bohlsen that he

       should get a court order and evict Tenants in a lawful manner. Id. at 147.


[12]   On February 12, 2013, Pine filed a complaint against Tenants, alleging that

       failure to pay the rent as required under the Lease constituted a breach of

       contract. At Landlords’ request, the trial court entered a default judgment on

       April 15, 2013. Tenants filed a motion for relief from default judgment, which

       the trial court granted on October 3, 2013. In November 2013, Tenants filed

       their counterclaim against Landlords and filed a motion for replevin in March

       2014.


[13]   On September 4, 2014, Tenants were granted leave to amend their

       counterclaim. In the amended counterclaim (“Counterclaim”), Tenants raised

       claims of breach of contract, replevin, constructive eviction, retaliatory eviction,

       conversion, and trespass. Tenants also named Bohlsen as a party defendant,

       asking the trial court to pierce the corporate veil. Tenants claimed that, at the

       time the Lease was entered into, Pine, the entity that signed the lease, was, and

       continues to be, administratively dissolved; therefore, the Lease “is of no

       effect,” and Bohlsen, the owner of Pine, was personally liable. Appellants’ App.

       at 43. Although the trial court made no specific findings regarding the

       appropriateness of piercing the corporate veil, it found Bohlsen liable for

       damages, concluding, “Defendants/Counterclaimants are entitled to a

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 8 of 20
       judgment against the Counter-Defendants on their Amended Counterclaim for

       Damages.” Id. at 15 (emphasis added). The parties entered into, and the trial

       court approved, an Agreed Order of Possession on the Replevin Motion

       (“Agreed Order”) on October 2, 2014; two months later, Tenants filed a motion

       to enforce the Agreed Order, which the trial court granted on January 7, 2015.6


[14]   During the March 10, 2015 bench trial, Landlords introduced evidence of

       damages caused by Tenants’ failure to pay the rent, and Tenants introduced

       evidence of damages caused by the illegal removal of Tenants’ business

       property. Landlords admitted that they made no attempt to return Tenants’

       property. However, Landlords argue on appeal that they did not illegally

       remove the business property because, under the Lease, they had a right to

       enter the Building after providing Tenants with a written notice of default.


[15]   While it is true that Landlords could inspect the premises during regular

       business hours and enter the building after providing Tenants with notice of

       default, neither of those provisions provided Landlords with the right to remove

       Tenants’ property from the Building. Tr. at 129; Appellant’s App. at 18. Further,

       the Lease contained no terms suggesting that Landlords had a lien against the

       business property securing Tenants’ payment of the rent.




       6
        The following documents are not in the record before us: Pine’s complaint, the default judgment, Tenants’
       motion for relief from default judgment, Tenants’ counterclaim and motion for replevin, the Agreed Order of
       Possession on the Replevin Motion, and the order enforcing the Agreed Order.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]           Page 9 of 20
[16]   In its April 24, 2015 Order, the trial court made the following findings. First,

       “The parties entered into a lease agreement on August 30, 2012 for a period of

       three (3) years,” which called for a monthly rent payment of $2,500.00.

       Appellants’ App. at 12. Tenants made one rent payment. Pine mitigated

       potential damages by re-leasing the property in September 2013. Id.; Tr. at 92.

       Accordingly, Tenants were indebted to Pine for one year’s rent, i.e., $30,000.00.

       Appellants’ App. at 12-13. Second, Landlords entered into Tenants’ business

       premises, which was the subject of the Lease and, without permission, removed

       Tenants’ vehicles, trailers, and tools. Id. at 13. As a result of “engaging in this

       apparent attempt at self-help,” Landlords interfered with Tenants’ business

       relationships with customers, resulting “in a loss of business and an attendant

       loss of revenue.” Id. Without explaining either the claim upon which it was

       granting the damages or the basis for the calculation, the trial court concluded

       that Tenants incurred damages in the amount of $30,000.00. Id. Third, the

       trial court found Landlords were in contempt of the Agreed Order. The trial

       court ordered Landlords to return Tenants’ business property within ten days of

       the Order.7


[17]   Tenants appeal, and Landlords cross-appeal the damages awards. Specific facts

       pertaining to the evidence of damages will be added where appropriate.




       7
           There is no evidence in the record before us regarding whether Tenants’ property was ever returned.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]             Page 10 of 20
                                      Discussion and Decision

                                   I. Damages Awarded to Pine
[18]   Tenants do not appeal the trial court’s conclusion that they breached the Lease

       by failing to pay rent. Instead, Tenants maintain that the $30,000.00 damages

       award entered against them and in favor of Pine is not within the scope of the

       evidence. Pine contends that its $30,000.00 award of damages for Tenants’

       breach of contract was within the evidence. Noting that the trial court set forth

       its method for calculating the damages, Pine maintains that the award was not

       based on “conjecture and speculation,” and therefore, should not be disturbed.

       Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280, 287 (Ind. Ct. App. 2013).


[19]   Generally, the computation of damages for a breach of contract is a matter

       within the sound discretion of the trial court. City of Jeffersonville v. Envtl. Mgmt.

       Corp., 954 N.E.2d 1000, 1015 (Ind. Ct. App. 2011). We will not reverse a

       damage award upon appeal unless it is based on insufficient evidence or is

       contrary to law. Id. In determining whether an award is within the scope of the

       evidence, we may not reweigh the evidence or judge the credibility of witnesses.

       Id. A factfinder may not award damages on the mere basis of conjecture and

       speculation. Sheek, 993 N.E.2d at 287 (citing Indianapolis City Mkt. Corp. v.

       MAV, Inc., 915 N.E.2d 1013, 1024 (Ind. Ct. App. 2009)), trans. denied. Instead,

       the award must be supported by probative evidence. Id. (citing Four Seasons

       Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 507 (Ind. Ct. App. 2007).

       “Accordingly, a damage award must reference some fairly defined standard,

       such as cost of repair, market value, established experience, rental value, loss of
       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 11 of 20
       use, loss of profits, or direct inference from known circumstances.” Farah, LLC

       v. Architura Corp., 952 N.E.2d 328, 337 (Ind. Ct. App. 2011) (quoting Coffman v.

       Olson & Co., P.C., 906 N.E.2d 201, 210 (Ind. Ct. App. 2009), trans. denied). In a

       breach of contract action, the measure of damages is the loss actually suffered

       by the breach. Sisters of St. Francis Health Servs., Inc. v. EON Props., LLC, 968

       N.E.2d 305, 313 (Ind. Ct. App. 2012). That said, the non-breaching party is not

       entitled to be placed in a better position than it would have been if the contract

       had not been broken. Id.


[20]   Here, the trial court calculated the $30,000.00 damages award for Tenants’

       breach of contract claim by multiplying Tenants’ monthly rent of $2,500.00 by

       twelve months, presumably the period from September 1, 2012 through August

       30, 2013 (because the Building was re-rented by September 2013).8 Tr. at 92.

       Tenants argue that the evidence does not support the $30,000.00 award because

       the calculation of damages, based, as the trial court determined, on one year of

       rent, should have been reduced by credits: (1) for Tenants’ payments of the

       September 2012 rent and the security deposit; (2) to compensate Tenants for

       Pine’s untimely completion of the Landlord Work; and (3) to reimburse

       Tenants for repairs they performed on the Building.




       8
        Bohlsen testified that: Pine “had a signed lease with somebody else who defaulted in the summer of 2013”;
       and subsequent lease agreements resulted in a shortfall of rent because the Building was rented for less than
       $2,5000.00 per month Tr. at 93. In calculating damages, the trial court chose not to consider whether
       Tenants were liable for less than twelve months rent, due to a subsequent renter’s default, nor did it consider
       whether shortfalls in rent resulted in additional damages to Pine.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]             Page 12 of 20
[21]   At the commencement of the Lease, Tenants paid Landlords $2,500.00 for the

       September 2012 rent, which Pine applied to that month’s rent. Tenants also

       paid Pine $2,500.00 for a security deposit. The Lease provided that the security

       “deposit shall be returned to Tenant[s], without interest, and less any set off for

       damages to the premises upon termination of this Lease, any unpaid rents, or

       any other fees incurred by the Landlord in conjunction with Tenant[s]’

       possession of the Premises.” Appellants’ App. at 15. The Lease clearly

       contemplated that the security deposit could be used as a credit against unpaid

       rents. The trial court’s $30,000.00 damage award is not supported by the

       evidence because the trial court’s judgment did not apply a credit for the

       September rent and a credit for some or all of the $2,500.00 security deposit.


[22]   Tenants moved into the Building on September 4, 2012. The Lease required

       Pine to complete Landlord Work within four weeks of receiving notice from

       Tenants and provided that Tenants would be given rent credit in the amount of

       $500.00 for each month that the Landlord Work remained incomplete.

       Appellants’ App. at 16. Tenants notified Pine in a September 7, 2012 email that

       it was waiting for Pine to commence the Landlord Work.9 Id. at 28. Pine




       9
         Bohlsen testified during trial that he did not believe Pine had a legal obligation to perform Landlord Work
       on the Building until Indy Drains executed the Lease Guaranty on October 3, 2012. Tr. at 100. Pine,
       therefore, contends that the thirty-day time limit for completing Landlord Work could not have commenced
       until October 3, 2012. We disagree. Here, the Lease contained no provision suggesting that the time frame
       for commencement of the Landlord Work would or could be delayed until Indy Drains signed the Lease
       Guaranty. Further, as early as September 7, 2012, Tenants sent an email to Bohlsen informing Pine that
       Tenants would be willing to sign a new lease under the name Indy Drains and requested that Star be added to
       any new lease. Appellees’ App. at 28.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]           Page 13 of 20
       admitted that the Landlord Work was not completed until around December

       15, 2012. Id. at 33. Accordingly, Tenants should have received at least some

       credit against the rent.10 Further, by affidavit, Bohlsen testified that Pine had

       agreed to waive Tenants’ October 2012 rent and deduct $500.00 from the

       November rent and $300.00 from the December rent. Id. The trial court’s

       damages award was not supported by the evidence because the trial court’s

       judgment does not reflect the credits that, by contract and by Pine’s own

       admission, were owed to Tenants for the delay in completing the Landlord

       Work


[23]   Finally, Tenants maintain that they should have received a set-off for the repairs

       they made to the Building. On October 5, 2012, Tenants submitted an invoice

       to Landlords in the amount of $2,402.50; the repairs included, removing the

       previous tenant’s furniture, trash, and debris, having carpets professionally

       cleaned, removing a previous tenant’s commercial sign, trimming trees,

       replacing a lock and missing or damaged blinds, installing switch plates,

       repairing “Electric Strike (Door Opener),” and making copies of keys. Under

       the Lease, Pine agreed to “keep and maintain in good repair and working order




       10
          Pine counters that, because it could not re-rent the Building for the full rental price of $2,500.00 per month,
       it should have been given damages to reflect the shortfall in rent payments. The record before us, however,
       contains no evidence of subsequent leases; further Pine provided no specific evidence regarding the shortfalls.
       The evidence of shortfall came from Bohlsen, who testified that the new rent “was less than what Indy
       Drains agreed to pay. I think it was, sort of, uh, a sliding scale lease where, I think, like the first few months
       were $1,800.00, $1,900.00 a month and then it slowly went up to, I think, now, probably, it’s closer to
       $2,100.00 or $2,200.00 a month — something like that.” Tr. at 93. This was insufficient evidence from
       which the trial court could have made a determination regarding damages Pine may have incurred due to a
       shortfall in rent.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]                Page 14 of 20
       and make repairs to and perform maintenance upon”: (a) structural elements of

       the Building; (b) mechanical (including HVAC), electrical service . . . and below

       ground plumbing elements; (c) the roof of the Building; (d) exterior windows of

       the Building; and (e) all exterior lighting. Appellant’s App. at 16. Pine also

       promised to make certain improvements and repairs, including replace worn or

       damaged carpeting throughout the Building. Id. at 24. Thereafter, Tenants

       offered to clean the carpeting in lieu of having Pine replace it, if Pine would

       make additional repairs.11 Pine agreed, and Tenants paid $350.00 to clean the

       carpet; an amount that Pine should have reimbursed. The award of damages in

       the amount of $30,000.00 gave Tenants no credits against rent for the

       September rent payment, the security deposit, Pine’s delay of Landlord Work,

       or set-offs for Tenants’ repairs. Accordingly, we vacate the damages award on

       Pine’s breach of contract claim and remand for the trial court to recalculate

       damages.


                                 II. Damages Awarded to Tenants
[24]   Both Tenants and Landlords12 challenge the trial court’s decision to award

       $30,000.00 in damages to Tenants’ on their Counterclaim; Tenants contend that

       the award is inadequate to cover their damages, and Landlords contend that the




       11
          During the bench trial, Bohlsen testified that Pine agreed to replace the carpets in the Building as part of
       Landlord Work. Thereafter, Tenants negotiated with Pine, and Pine agreed, that instead of replacing the
       carpets, Tenants could clean the carpets, and Landlords would complete “stucco repair, and some other
       things to the [B]uilding.” Tr. at 43-44.
       12
         Bohlsen does not appeal the trial court’s finding that both he and Pine are liable for any damages owed to
       Tenants.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]                Page 15 of 20
       award is excessive. Our review of a damages award is limited. Sheek, 993

       N.E.2d at 287 (citing Four Seasons Mfg., 870 N.E.2d at 507). We do not reweigh

       the evidence or judge the credibility of witnesses, and we will reverse an award

       only when it is not within the scope of the evidence before the finder of fact. Id.

       (citing Four Seasons Mfg., 870 N.E.2d at 507). A factfinder may not award

       damages on the mere basis of conjecture and speculation. Id. (citing

       Indianapolis City Mkt., 915 N.E.2d at 1024). Instead, the award must be

       supported by probative evidence. Id. In reviewing an award of damages, we do

       not require any particular degree of mathematical certainty. I.C.C. Protective

       Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1037 (Ind. Ct. App.

       1998), trans. denied.


[25]   We begin by noting that Tenants raised claims of breach of contract, replevin,

       constructive eviction, retaliatory eviction, conversion, and trespass. Following

       the bench trial, the trial court found:


               Counterclaim Defendants [Landlords] entered into the
               Defendants’ [Tenants’] business premises which was the subject
               of this lease and removed vehicles, equipment and business property of
               the Defendants without the permission of the Defendants. As a result of
               the Counterclaim Defendants engaging in this apparent attempt
               at self-help, they interfered with Defendants’ business
               relationships with Defendants’ customers which resulted in a loss
               of business and an attendant loss of revenue. The Court finds the
               Defendants/Counterclaim Plaintiffs have incurred damages in
               the amount of Thirty Thousand and 00/100 Dollars
               ($30,000.00).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 16 of 20
       Appellants’ App. at 13 (emphasis added). While the trial court cited to Landlords

       having engaged in self-help, it is not clear the precise claim or claims upon

       which the damages were awarded or why the award was in the amount of

       $30,000.00.13 However, the trial court’s reference to the removal of Tenants’

       property without permission fits most closely with a claim of replevin or

       conversion.


[26]   In a replevin action, the only issue that must be decided is the right of the

       plaintiff to present possession. United Farm Family Mut. Ins. Co. v. Michalski, 814

       N.E.2d 1060, 1067 (Ind. Ct. App. 2004). In order for a plaintiff to recover in an

       action for replevin, he must prove his title or right to possession, that the

       property is unlawfully detained, and that the defendant wrongfully holds

       possession thereof. Id. Judgment for the plaintiff may be for: (1) the delivery

       of the property, or the value of the property in case delivery is not possible; and

       (2) damages for the detention of the property.14 Ind. Code § 32-35-2-33. In

       replevin actions, the usual measure of damages would be the value of the loss of

       use, measured by the fair rental value, if possible. Roy Bayer Trust v. Red Husky,

       LLC, 13 N.E.3d 415, 419 (Ind. Ct. App. 2014). Apart from loss of use, the trial




       13
          Tenants concede that the award was not granted in connection with the claim of trespass. A plaintiff in a
       trespass action must prove that he was in possession of the land and that “the defendant entered the land
       without right.” Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216, 227 (Ind. Ct. App. 1999) (quotation omitted).
       In their Reply Brief, Tenants admit that the Lease gave Landlords the right to be on the premises upon
       default.
       14
          The Agreed Order is not in the record before us; therefore, it is impossible to determine whether the
       Agreed Order resolved the replevin claim, and if so, whether the Agreed Order awarded damages to Tenants
       to compensate them for Landlord having removed Tenants’ business property.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]           Page 17 of 20
       court in a replevin action may also award damages for any deterioration in the

       value of the property while in the hands of the defendant. Id.


[27]   Tenants argue that they presented evidence that: (1) the three vans had a total

       value of $5,445.00; (2) the three trailers had a total value of $13,500.00; and (3)

       the estimated value of all the tools was $19,500.00. Appellants’ App. at 46. The

       total value of Tenants’ illegally removed business property amounted to

       $38,445.00, a value that Pine did not contradict. The trial court, however,

       made no determination of the value of the removed property.


[28]   Indiana Code section 35-43-4-3 provides that a “person who knowingly or

       intentionally exerts unauthorized control over the property of another person

       commits criminal conversion.” A civil action under the criminal conversion

       statute is permitted by Indiana Code section 34-24-3-1. That section allows a

       person who suffers a pecuniary loss as a result of a violation of Indiana Code

       Article 35-43 to bring a civil action against the person who caused the loss for:

       (1) an amount not to exceed three times the actual damages; (2) costs of the

       action; and (3) attorney fees. The plaintiff in a civil conversion action is

       required to prove these elements by a preponderance of the evidence. SJS

       Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 766 (Ind. Ct.

       App. 2011). “In order to establish a claim, a plaintiff must show a violation of

       one of the specific code sections and that such violation caused the loss suffered

       by the plaintiff.” Id.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 18 of 20
[29]   Tenants claimed that they made an “unqualified demand” to Landlords “for

       return of the business property,” but the Landlords refused to return the

       property. Appellant’s App. at 42. Tenants asked for “treble dam[ag]es or three

       (3) times the amount due and owing, an amount Tenants estimated to be

       $115,335.00.15 Id. at 42, 46. While it is not clear whether Landlords ever

       returned Tenants’ business property, the evidence in the record before us reveals

       that Landlords had possession of Tenants’ property from February 8, 2013 (the

       date it was removed) through at least April 24, 2015 (the date of the order in

       which trial court made a finding that Landlords were in contempt for failing to

       return the property). As noted above, the trial court made no determination of

       the value of the removed property, nor did it mention treble damages.


[30]   Tenants presented evidence, including invoices, that it lost clients as a result of

       Landlords’ illegal taking of the business property and that the loss of those

       clients resulted in $820,956.00 in estimated “total lost net revenue” for 2013

       and 2014. Appellant’s App. at 45-46, 48-66. The trial court acknowledged that

       Tenants had “a loss of business and an attendant loss of revenue.” Appellant’s

       App. at 13. Without further explanation, the trial court granted Tenants

       damages in the amount of $30,000.00. A damage award must be supported by

       probative evidence. Four Seasons Mfg., 870 N.E.2d at 507. As the record does




       15
          Tenants’ claimed damages in the amount of $941,070.50, which reflected net lost profits; value of vans,
       trailers, and tools; storage fees for equipment and vehicles (for September through November of 2012, before
       Landlord had installed the fence); and repairs to the premises. Tr. at 206; Appellant’s App. at 45-47. Tenants
       also requested attorney fees for the conversion action. Tr. at 207; Appellant’s App. at 47.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]             Page 19 of 20
       not reflect how the trial court calculated the $30,000.00 damages award to

       Tenants, we reverse that award, finding that it is based on conjecture,

       speculation, or surmise. See Whitaker v. Brunner, 814 N.E.2d 288, 296 (Ind. Ct.

       App. 2004) (“The damage award cannot be based on speculation, conjecture, or

       surmise, and must be supported by probative evidence.”), trans. denied.


[31]   The parties do not appeal the trial court’s findings that Tenants are liable to

       Landlords for breach of contract and that Landlords are liable to Tenants for

       having illegally removed their business property. Accordingly, we affirm the

       trial court’s determination that Landlords and Tenants are each liable for

       damages. However, we reverse the trial court’s damages awards, each in the

       amount of $30,000.00, finding that they are not supported by the evidence, and

       we remand the issue of damages to the trial court, instructing the court to: (1)

       identify the basis for awarding the damages under Tenants’ Counterclaim; and

       (2) recalculate the damages awards, holding a new hearing on damages if

       necessary.


[32]   Affirmed in part, reversed in part, and remanded with instructions.


[33]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CC-412 | July 13, 2016]   Page 20 of 20
