      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Oct 04 2018, 9:03 am

      court except for the purpose of establishing                              CLERK
                                                                            Indiana Supreme Court
      the defense of res judicata, collateral                                  Court of Appeals
                                                                                 and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Fred L. Cline                                            Mark R. Waterfill
      Oliver & Cline, LLP                                      Indianapolis, Indiana
      Danville, Indiana




                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John H. Battershell and Helen A.                         October 4, 2018
      Battershell,                                             Court of Appeals Case No.
      Appellants-Defendants/Counter-                           32A01-1708-CC-1989
      Plaintiffs,                                              Appeal from the Hendricks
                                                               Superior Court
              v.                                               The Honorable Mark A. Smith,
                                                               Judge
      Stuart C. Surface,                                       Trial Court Cause No.
      Appellee-Plaintiff/Counter-Defendant.                    32D04-1312-CC-1270




      Mathias, Judge.

[1]   Stuart Surface (“Surface”) filed a complaint in Hendricks Superior Court

      against John and Helen Battershell (collectively “the Battershells”) alleging that

      the Battershells breached their lease agreement with Surface. The Battershells
      Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018        Page 1 of 23
      counterclaimed and alleged that Surface breached the lease agreement. The trial

      court initially granted summary judgment to the Battershells but later set aside

      its judgment. After a bench trial, the court determined that the Battershells

      breached the lease agreement. However, the court concluded that Surface failed

      to prove damages, and therefore, entered a zero-damage award but ordered the

      Battershells to pay Surface’s attorney fees in the amount of $37,312.22.


[2]   The Battershells appeal and raise several issues, which we restate as:


            I.    Whether the trial court abused its discretion when it set aside its
                  order entering summary judgment in the Battershells’ favor;
           II.    Whether the trial court erred when it concluded that Surface did not
                  breach the lease agreement;
          III.    Whether the trial court erred when it concluded that the Battershells
                  converted Surface’s personal property; and,
          IV.     Whether the trial court erred when it awarded attorney fees to
                  Surface.

      Surface cross-appeals and raises two arguments, which we restate as:


            I.    Whether the trial court erred when it concluded that Surface failed to
                  prove damages for the converted personal property; and,
           II.    Whether the trial court abused its discretion when it awarded Surface
                  less than the amount he requested in attorney fees.

[3]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History
[4]   The Battershells own commercial real estate located at 258 Meadow Drive in

      Danville, Indiana. Surface, who is a real estate agent and a member and

      Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 2 of 23
      manager of a property renovation company, began renting commercial property

      from the Battershells in 2008. In 2013, Surface wanted to increase the size of his

      office space. Therefore, the parties agreed to lease terms for the larger Meadow

      Drive property.


[5]   Surface requested certain improvements and modifications to his new office

      space. The parties agreed that the Battershells would initially pay for the

      improvements, but that total cost of improvements would be amortized over the

      life of the ten-year lease. Surface agreed to pay rent in the amount of $1,310.56

      per month.


[6]   In May 2013, the parties executed the lease agreement. The lease agreement

      provided that Surface was required to purchase liability and casualty insurance

      naming both parties as the insureds. Surface gave the Battershells a copy of the

      required certificate of insurance. However, the Battershells were not named as

      insureds. In August 2013, the Battershells sent Surface a letter asking him to

      provide a certificate of insurance naming them as insureds as required by the

      lease agreement. But the letter did not specifically declare that Surface had

      breached the lease agreement.

[7]   Also, on December 13, 2013, Surface attempted to pay his rent due on

      December 15, but the Battershells’ office was locked. Therefore, the Battershells

      did not receive the lease payment until December 16, 2013. The lease

      agreement provided that if Surface failed to pay rent for ten days after its due

      date, the Battershells had the right to re-enter the premises and take possession.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 3 of 23
[8]    The Battershells assumed that Surface intended to vacate the property because

       certain furniture was missing. Surface had moved certain property and furniture

       that was previously affixed to the premises1 to another location. Surface never

       informed the Battershells that he intended to move out of the property.


[9]    On December 16, 2013, one day after his rent was due and without notifying

       Surface, the Battershells changed the locks on the Meadow Drive property.

       Therefore, Surface was unable to access his personal property located on the

       premises and was deprived of use of the premises.


[10]   On December 18, 2013, Surface sent a letter to the Battershells stating that the

       Battershells had breached the lease agreement by denying him access to the

       leased property. Surface also requested the return of certain personal property

       left on the premises. Surface received some, but not all, of the personal property

       that was stored in his office. The property that was not returned to him were

       items of sentimental value that belonged to his deceased mother.


[11]   On December 27, 2013, Surface filed a complaint against the Battershells

       alleging breach of contract and asserting claims for replevin and conversion.

       The Battershells counterclaimed also arguing breach of contract, theft and

       conversion.




       1
           Surface purchased and paid for the assembly and installation of office furniture and storage units.


       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018               Page 4 of 23
[12]   In December 2014, after Surface’s attorney withdrew and Surface failed to

       respond to certain discovery requests, including requests for admissions, the

       Battershells moved for summary judgment. Surface failed to respond to the

       motion, and the trial court granted summary judgment to the Battershells on

       January 30, 2015.


[13]   On April 24, 2015, Surface filed a motion for relief from judgment and a

       motion to withdraw deemed admissions. A hearing was held on the motions,

       and on August 14, 2015, the trial court set aside the summary judgment order

       and the deemed admissions.2


[14]   A bench trial was held on May 16, 2017. And on June 20, 2017, the trial court

       issued findings of fact and conclusions of law. In pertinent part, the trial court

       concluded that


                2. The Lease between Surface and [Battershell] is not ambiguous.
                Under the unambiguous language of the Lease, Battershell was
                required to notify Surface of any alleged breach and to allow
                Surface to correct the breach in twenty (20) days.


                3. At the time that Battershell changed the locks and locked
                Surface out of the Leased Premises, Battershell breached the
                Lease and violated Indiana law.




       2
        The Battershells filed a motion requesting the trial court certify its order granting Surface’s Trial Rule 60(B)
       motion for interlocutory appeal. The trial court denied the Battershells’ motion. Appellants’ App. p. 8.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018               Page 5 of 23
               4. Battershell committed an act of conversion of Surface’s
               personal items in violation of Ind. Code § 35-43-4-3(a).


       Appellants’ App. p. 19.


[15]   However, the trial court also found that Surface failed to prove the value of the

       converted personal items. Consequently, he was “not entitled to recover any

       damages for the converted property not returned.” Id. Yet, the trial court also

       concluded that Surface was entitled to attorney fees pursuant to Indiana Code

       section 34-24-3-1 in the amount of $37,312.22. This amount is significantly less

       than the $97,912.47 in fees that Surface requested.


[16]   The Battershells appeal the trial court’s order setting aside the summary

       judgment entered in their favor and the trial court’s judgment in favor of

       Surface. Surface cross-appeals arguing that he should have been awarded

       damages for the sentimental value of his personal property.


                                          Standard of Review
[17]   At the conclusion of the bench trial, the trial court entered findings of fact and

       conclusions of law pursuant to Indiana Trial Rule 52.

               The findings or judgment are not to be set aside unless clearly
               erroneous, and we give due regard to the trial court's ability to
               assess the credibility of witnesses. On review, we first consider
               whether the evidence supports the factual findings and then
               consider whether the findings support the judgment. Further,
               “while we defer substantially to findings of fact, we do not do so
               to conclusions of law.”



       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 6 of 23
       WindGate Properties, LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App. 2018)

       (quoting Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000)).


                I. The Trial Court’s Order Setting Aside Summary Judgment

[18]   The trial court initially entered summary judgment in favor of the Battershells

       after Surface failed to respond to the motion. Approximately three months later,

       Surface filed a motion for relief from judgment pursuant to Trial Rule 60(B)(1)

       and (8), which provides in pertinent part:


               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment, including a
               judgment by default, for the following reasons:

               (1) mistake, surprise, or excusable neglect;

               (8) any reason justifying relief from the operation of the
               judgment, other than those reasons set forth in sub-paragraphs
               (1), (2), (3), and (4).

       A movant alleging mistake, surprise, or excusable neglect “must allege a

       meritorious claim or defense.” T.R. 60(B).


[19]   The trial court concluded that Surface met his burden of proving that he was

       entitled to relief under Trial Rule 60(B). See id. The Battershells appeal and

       argue that the trial court abused its discretion when it granted relief to Surface

       because they presented evidence that Surface was aware of filings in the case

       and that he understood that a response to their summary judgment motion was

       required.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 7 of 23
[20]   Relief under Trial Rule 60(B) is “an equitable remedy within the trial court’s

       discretion,” and we “review a trial court’s Rule 60 ruling only for abuse of

       discretion.” In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). “The trial

       court’s discretion is necessarily broad in this area because any determination of

       excusable neglect, surprise, or mistake must turn upon the unique factual

       background of each case[.]” Huntington Nat’l Bank v. Car-X Assoc. Corp., 39

       N.E.3d 652, 655 (Ind. 2015) (citation omitted). And when we review a trial

       court’s decision to grant or deny a Trial Rule 60 (B) motion, we do not reweigh

       the evidence or substitute our judgment for that of the trial court. Id.


[21]   Default judgment “plays an important role in the maintenance of an orderly,

       efficient judicial system as a weapon for enforcing compliance with the rules of

       procedure and for facilitating the speedy determination of litigation[.]” Charnas

       v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005). However, “in

       Indiana there is a marked judicial deference for deciding disputes on their

       merits and for giving parties their day in court[.]” Id. And any doubt as to the

       propriety of a default judgment must be resolved in favor of the defaulted party.

       Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind. 2001).


[22]   There is no general rule as to what constitutes excusable neglect under Trial

       Rule 60(B). Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 310 (Ind. Ct. App.

       2012) (citing Kmart v. Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999),

       trans. denied), trans. denied. Each case must be determined on its particular facts.

       Id. Sickness of a party has been held to constitute excusable neglect. Id. (quoting

       Kmart, 719 N.E.2d at 1254).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 8 of 23
[23]   Here, Surface’s counsel withdrew from the case in May 2014. Surface does not

       dispute that he received notice of pleadings and discovery requests that the

       Battershells filed while he was unrepresented by counsel. The Battershells filed

       their motion for summary judgment on December 23, 2014. Approximately

       two weeks later, Surface sent an email to the Battershells’ attorney that stated,

       “I have retained a law firm to represent me in the Battershell matter. They will

       make their appearance this week.” Appellants’ App. p. 128. An attorney did not

       file an appearance for Surface before the response to the motion for summary

       judgment was due.


[24]   One week before the summary judgment response was due, Surface was

       admitted to Fairbanks Hospital for inpatient drug treatment. Shortly thereafter,

       he was transferred to an intensive inpatient residential facility in Florida. In

       addition to his drug addiction, Surface argues he was entitled to relief from

       judgment because he was suffering from “compromised higher cerebral

       functioning of a moderate to severe degree” which impaired his general

       cognitive abilities. Id. at 136. Surface submitted to the trial court a report from

       Dr. Donald Layton, a licensed psychologist and neuropsychologist, who

       evaluated Surface and concluded that “current impairments reflect a clear

       decline in this patient’s higher cognitive functioning from some previous,

       probably average level given his level of education.” Id. Dr. Layton also

       concluded that given the “nature and significance of [Surface’s] impairments,

       he will require assistance with his medications, financial affairs and nutritional

       needs.” Id.


       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 9 of 23
[25]   The trial court was presented with evidence that Surface’s severe drug addiction

       and neurological and psychological impairments prevented him from actively

       participating in the proceedings. Moreover, Surface had not abandoned the

       litigation but had twice communicated with the Battershells’ attorney during

       the months he was unrepresented by counsel. Finally, Surface presented

       evidence a meritorious claim and defense as required by Trial Rule 60B(B).3 For

       these reasons, and given the unique facts of this case, we conclude that the trial

       court acted within its considerable discretion when it granted Surface’s Trial

       Rule 60(B) motion for relief from judgment.


                                     II. Breach of the Lease Agreement

[26]   The Battershells also dispute the trial court’s interpretation of the lease and its

       conclusion that Surface did not breach the parties’ lease agreement. A lease is

       construed in the same manner as any other contract. Stout v. Kokomo Manor

       Apts., 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997). The construction of the




       3
         The Battershells argue that Surface should not have been permitted to present any evidence of a meritorious
       defense because Surface failed to respond to its motion for summary judgment and a trial court may not
       consider any response filed outside the thirty-day time limit established in Trial Rule 56. The Battershells cite
       to Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967 (Ind. 2014) in support of their argument. In that case,
       the court addressed a conflict between Trial Rules 54(B) and 56(C) and held that a trial court cannot consider
       summary judgment filings of a party after the thirty-day deadline in Rule 56(C). Id. at 973. However, in that
       same case, the supreme court explained that the Appellees were not precluded from seeking Trial Rule 60(B)
       relief from the trial court’s order granting partial summary judgment to the Appellant. Id. at 974. We cannot
       conceive of any reason our supreme court would expressly state that a party may file a Trial Rule 60(B)
       motion requesting relief from an order granting summary judgment if a party would not also be permitted to
       present evidence of a meritorious defense. But see Welton v. Midland Funding, LLC, 17 N.E.3d 353 (Ind. Ct.
       App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018             Page 10 of 23
       terms of a written contract is a pure question of law, which we review de novo.

       Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).


               When construing the meaning of a contract, our primary task is
               to determine and effectuate the intent of the parties. First, we
               must determine whether the language of the contract is
               ambiguous. The unambiguous language of a contract is
               conclusive upon the parties to the contract and upon the courts.
               If the language of the instrument is unambiguous, the parties’
               intent will be determined from the four corners of the contract. If,
               on the other hand, a contract is ambiguous, its meaning must be
               determined by examining extrinsic evidence and its construction
               is a matter for the fact-finder. . . . We read the contract as a
               whole and will attempt to construe the contractual language so as
               not to render any words, phrases, or terms ineffective or
               meaningless. We must accept an interpretation of the contract
               that harmonizes its provisions, rather than one that places the
               provisions in conflict.


       Whitaker v. Brunner, 814 N.E.2d 288, 293–94 (Ind. Ct. App. 2004), trans. denied

       (citations and quotation marks omitted).


[27]   The lease agreement contained the following provision:


               Tenant will purchase and maintain, at its own expense, public
               liability and casualty insurance naming Landlord and Tenant as
               insureds and insuring against liability for injuries to persons and
               property occurring on the real estate or within the Leased
               Premises, all with limits of liability coverage in an amount not
               less than $1,000,000.00. Tenant further agrees to purchase and
               maintain, at its own expense, content insurance, protecting
               Tenant’s personal property located within the demised premises.
               Tenant will furnish Landlord with certificates of such coverage
               within ten (10) days of commencement of this Lease.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 11 of 23
       Appellants’ App. p. 35. The lease agreement also provided that if Surface

       breached the lease agreement and the default was not cured “within twenty (20)

       days after written notice of such breach, it shall be lawful for Landlord . . . to re-

       enter into and upon said Leased Premises . . . and repossess the same and

       institute legal proceedings for any rent that may be due thereon.” Id. at 37.


[28]   The trial court found that under the unambiguous terms of the lease agreement,

       the Battershells were required to notify Surface of any alleged breach and allow

       him to correct the breach in twenty days. Id. at 19. The court then simply

       concluded that the Battershells were “entitled to nothing by way of its

       counterclaim.” Id.


[29]   Surface obtained liability insurance and forwarded a copy of the liability

       insurance to the Battershells as specified in the lease agreement. However, the

       insured was listed as Surface & Young LLC,4 and the Battershells were not

       named as additional insureds. Therefore, in August 2013, the Battershells sent

       Surface a letter asking him to “provide the required Insurance Certificate or

       provide some sort of explanation of how you intend to resolve this matter.” Id.

       at 96.




       4
        The Battershells also argue that naming “Surface and Young LLC” as the insured breached the lease
       agreement because the agreement was executed between Surface, individually, and the Battershells. But
       Surface was a manager and member of that company. In any event, that Surface and Young LLC was listed
       as the insured is not outcome determinative of the issues presented in this appeal.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018    Page 12 of 23
[30]   The letter did not explicitly state that Surface had breached the lease agreement.

       However, the letter did explain that the certificate of insurance provided by

       Surface did not comply with paragraph nine of the parties’ agreement. Yet, the

       Battershells did not demand any specific action within 20 days but only

       requested the required insurance certificate or an explanation of how Surface

       intended to resolve the matter.


[31]   Moreover, the Battershells took no other action on Surface’s failure to name the

       Battershells as insureds on the liability policy. And the Battershells continued to

       collect Surface’s rent payments and allowed him to remain in possession of the

       premises. By failing to demand that Surface produce the required insurance

       certificate within twenty days and by allowing Surface to remain in possession

       of the premises, the Battershells essentially waived that provision of the contract

       and acquiesced to Surface’s breach. White River Conserv. Dist. v. Commonwealth

       Engineers, Inc., 575 N.E.2d 1011, 1016 (Ind. Ct. App. 1991) (stating “strict

       performance of the terms of a contract on the part of one party may be waived

       by the other”), trans. denied; see also Turner v. Nationstar Mortg., LLC, 45 N.E.3d

       1257, 1263–64 (Ind. Ct. App. 2015) (“Abandonment may be inferred from the

       conduct of the parties, and a contract will be treated as abandoned when one

       party acts inconsistently with the existence of the contract, and the other party

       acquiesces.”).


                                               III. Conversion

[32]   Next, the Battershells argue that the trial court erred when it concluded that

       they were liable for conversion. A person who knowingly or intentionally exerts
       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 13 of 23
       unauthorized control over property of another person commits criminal

       conversion. Ind. Code § 35-43-4-3. “A person engages in conduct ‘intentionally’

       if, when he engages in the conduct, it is his conscious objective to do so.” Ind.

       Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he

       engages in the conduct, he is aware of a high probability that he is doing so.”

       Ind. Code § 35-41-2-2(b). Indiana Code section 35-43-4-1(a) provides that to

       “exert control over property” means “to obtain, take, carry, drive, lead away,

       conceal, abandon, sell, convey, encumber, or possess property, or to secure,

       transfer, or extend a right to property.” A person’s control over property of

       another person is “unauthorized” if it is exerted without the other person’s

       consent, in a manner or to an extent other than that to which the other person

       has consented, or by promising performance that the person knows will not be

       performed. See Ind. Code § 35-43-4-1-(b)(1), -(2), and -(6).


[33]   Pursuant to Indiana Code section 34-24-3-1, a person who has suffered a

       pecuniary loss as a result of a criminal conversion may bring a civil action to

       recover the loss. JET Credit Union v. Loudermilk, 879 N.E.2d 594, 597 (Ind. Ct.

       App. 2008), trans. denied. If the person who suffered the pecuniary loss proves

       the elements of criminal conversion by a preponderance of the evidence, he or

       she can recover up to three times the actual damages, the costs of the action,

       and reasonable attorney’s fees. Id. at 596 n.4, 597.


[34]   The trial court found that after the Battershells locked Surface out of the

       premises, Surface did not have access to his personal property at the leased

       premises.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 14 of 23
               25. On December 18, 2013, Surface’s counsel sent a letter to
               Battershell asserting that Battershell was in material breach of the
               Lease and demanded that Surface be allowed to return to the
               Leased Premises and to retrieve his personal property.

               26. Surface made a request for the return of all of his remaining
               personal property, including construction materials, a nine-
               millimeter pistol, an Xbox gaming system, a Rolex Submariner
               watch, a number of his deceased mother’s personal affects, and
               items he purchased to give his family as Christmas gifts.

               27. Ultimately, at a meeting with Battershell and counsel, some
               construction materials and a nine-millimeter pistol were returned
               to Surface. However, the rest of Surface’s personal property,
               including personal items from his deceased mother, was not
               returned.

       Appellants’ App. p. 18. The trial court found that the Battershells committed

       conversion by failing to return all of Surface’s personal property.


[35]   The Battershells locked Surface out of the leased premises without notice and

       without giving him an opportunity to remove his personal property. Surface

       prepared an itemization of the property left in the leased premises, which was

       admitted at trial as Exhibit 11. Certain items on the list were eventually

       returned to Surface, but other items were not. Tr. p. 37.

[36]   The only testimony to support the trial court’s conclusion that Surface owned

       the property in question and that it was located in the leased premises was

       Surface’s own testimony. Surface did not produce receipts or other

       documentation establishing ownership of personal property. But as the finder of

       fact, the trial court chose to credit Surface’s testimony concerning his property

       that was never returned. Surface’s testimony is sufficient to prove by a
       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 15 of 23
       preponderance of the evidence that the Battershells converted Surface’s

       property.


                                        IV. Zero-Damage Award

[37]   In his cross-appeal, Surface argues that the trial court erred when it awarded

       him zero damages. The trial court declined to award damages because Surface

       “failed to prove the value of his damages as to the converted property.”

       Appellants’ App. p. 19.


               He testified that the value of his deceased mother’s property was
               sentimental. Surface did not submit any receipts or other
               satisfactory evidence of the value of the remaining items of
               personal property identified in his Exhibit 11. Therefore, he is not
               entitled to recover any damages for the converted property not
               returned.


       Id.


[38]   Surface argues that he was entitled to a damage award based on the sentimental

       value of his converted property. Surface cites to two cases in support of his

       argument that “a damage award may be based upon” sentimental value.

       Appellee’s Br. at 23.


[39]   In Campins v. Capels, 461 N.E.2d 712 (Ind. Ct. App. 1984), three national racing

       championship rings were stolen and eventually destroyed. Capels sued the gold

       dealer who purchased the stolen rings and melted them down. Capels testified

       to the significant meaning and sentimental value of the rings at trial. He also

       testified that rings were custom made and submitted evidence of the price of

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 16 of 23
       gold on the date the rings were stolen. Capels estimated that he would have

       never sold the rings but that their worth was between $700 to $1,000, “finally

       settling on $750 when asked to be specific.” Id. at 716.


[40]   The trial court valued the rings at $1,000 each. On appeal, Campins, the gold

       dealer, argued that the damage award was excessive and Capels’s damages

       should be restricted to the price of gold or replacement value of the rings. Our

       court observed that considering sentimental value of an item to determine

       damages can be appropriate “in limited circumstances.” Id. at 721.


               When we refer to sentimental value, we do not mean mawkishly
               emotional or unreasonable attachments to personal property.
               Rather, we are referring to the feelings generated by items of
               almost purely sentimental value, such as heirlooms, family
               papers and photographs, handicrafts, and trophies. What we are
               referring to basically are those items generally capable of
               generating sentimental feelings, not just emotions peculiar to the
               owner. In other words, any owner of these USAC rings would
               have similar feelings. The most apt analogy to our situation is
               that of the trophies. In two cases, courts have awarded damages
               based on the consideration of the “blood, sweat and tears”
               expended to win these objects. We see no difference in giving
               special consideration to items such as these and to the three
               USAC rings, awarded for three years of “blood, sweat and tears”
               and thus having special sentimental meaning for Capels.


       Id. (citations omitted).


[41]   Our court therefore concluded that it was appropriate for the trial court to

       award damages in excess of the replacement value of the rings because of the

       unique circumstances and “special attachment to this property.” Id. at 722.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 17 of 23
       However, our court concluded that awarding more than $750 per ring was

       excessive. Specifically, the court explained:


               we can hardly deem it appropriate to fix a value higher than that
               asserted by the owner. Capels finally settled upon a figure of $750
               per ring; the court’s award of $1000 apiece could only have been
               improperly based on speculation. To decide otherwise would be
               to open a Pandora’s box of problems in the computation and
               proof of actual value. By our decision here, we simply conclude
               that certain property, by its very nature, has an element of
               sentiment essential to its existence. In this case, we refer to
               symbols for achievements of national stature and recognition and
               the calculation of their actual value. But we must also add the
               proviso that even for significant awards or mementos we do not
               intend to permit fanciful speculation as to their worth. We must
               fashion our remedy within the realm of sensibility, as here, where
               $750 is only slightly above the established range of replacement
               values. Such would naturally also be our standard in valuating
               similar significant awards, such as an Oscar, the Heisman
               Trophy, or an Olympic medal, where the recipient retains the
               honor despite the loss of the trophy, such trophy being merely the
               symbol of the achievement and perhaps replaceable by a
               surrogate. A certain amount of sentiment is inherent in the value
               of these objects to the owner, and each case must be based on its
               own facts. But we must refrain from considering all but
               reasonable estimates of that element of sentiment. We believe in
               this case, Capels’s $750 figure was just such a reasonable value of
               each ring with the sentiment included therein.


       Id. at 722–23.


[42]   Surface also relies on Mitchell v. Mitchell, 685 N.E.2d 1083 (Ind. Ct. App. 1997),

       trans. granted, 695 N.E.2d 920, summarily aff’d in relevant part. In Mitchell, the

       decedent’s daughter, Pam, and his second wife, Flossie, were engaged in a long-

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 18 of 23
       standing and bitter dispute over pictures, home movies, and the decedent’s

       personal effects. The parties eventually entered into an agreement concerning

       disposition of the property, but Flossie failed to turn over certain property to

       Pam as agreed. Therefore, Pam sued for specific performance under their

       contract.


[43]   At trial, Pam testified that the items were important to her and were of great

       sentimental value, but “expressed difficulty in placing a dollar figure on items

       with little market value[.]” Id. at 1086. She eventually testified that her damages

       for her time, travel, expenses for trying to retrieve the items, and her emotional

       suffering was between $35,000 and $50,000. Id. She also testified that the value

       of the items she had never received was between $77,000 and $100,000. Id. The

       trial court ordered Flossie to produce the items Pam had not received under the

       terms of the agreement and pay Pam “$35,000.00 as damages for the wilful

       three[-]year delay in complying with the agreement.” Id.


[44]   On appeal, Flossie argued that the $35,000 damage award was speculative and

       unsupported by independent evidence of Pam’s damages. Citing Campins, our

       court observed that

               “in establishing proof of loss, the complainant is less compelled
               to provide certainty in the amount of loss as he is to provide
               certainty in the actual fact of loss.” “In addition, no mathematical
               exactitude is required in assessing damages, and all uncertainties
               are resolved in favor of the complainant and against the
               wrongdoer.” There was ample evidence before the trial court to
               provide certainty as to the proof of loss and prove that the delay
               was caused by the intentional actions of Flossie. Though we

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 19 of 23
               recognize that placing a dollar value on items of purely
               sentimental value is a difficult and abstract business, we believe
               that Campins provides sufficient guidance in the determination of
               damages.


       Id. at 1088–89 (citing Campins, 461 N.E.2d at 722) (emphasis in original). Our

       court affirmed the $35,000 damage award after noting it was supported by the

       trial court’s findings and was the lowest estimate requested by Pam.


[45]   In this case, Surface testified that the property was “not worth a whole lot of

       monetary value.” Tr. p. 38. And the only value of the property was sentimental

       value. Id. at 38, 54–55. Surface was specifically asked what value he would

       place on the property, and he stated, “there’s no value that . . . you could put

       [on] these items” and “[i]f you gave me three hundred thousand dollars

       ($300,000) I wouldn’t take that for ‘em (sic), . . . there’s just no value.” Id. at 38.


[46]   Unlike the cases Surface relies on, here there is no testimony or evidence from

       which the trial court could appropriately fashion a damage award. The Campins

       court specifically cautioned against engaging in “fanciful speculation” to

       determine a damage award where personal property has unique sentimental

       value attached. 461 N.E.2d at 722. Surface failed to provide any evidence

       concerning value of the converted personal property, and therefore, we affirm

       the trial court’s zero-damage award.


                                               V. Attorney Fees

[47]   Finally, Battershells argue that Surface’s failure to prove monetary damages

       precludes an award of attorney fees. Under the Crime Victim’s Relief Act, a

       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 20 of 23
       person who suffers a pecuniary loss as a result of conversion may recover

       reasonable attorney fees from the person who caused the loss. Ind. Code § 34-

       24-3-1. The statute is penal in nature and must be strictly construed. Coleman v.

       Coleman, 949 N.E.2d 860, 869 (Ind. Ct. App. 2011).


[48]   In Coleman, our court held that “if a plaintiff suffers no pecuniary loss as the

       result of a defendant’s actions, the plaintiff is not entitled to recover attorney

       fees under the Crime Victim’s Relief Act. Id. (citing Bridgeforth v. Thornton, 847

       N.E.2d 1015, 1028 (Ind. Ct. App. 2006)).


               The statute explicitly refers to “pecuniary loss” as the necessary
               prerequisite for an award of attorney fees. It does not state that
               any “victim” of one of the enumerated crimes is entitled to
               attorney fees. If the legislature had intended the statute to have
               that broad of an application, it could have worded the statute
               differently.


       Id. The jury found in favor of the plaintiff on the theft count but also found that

       she suffered no damages as a result of the theft. Therefore, our court concluded

       that the plaintiff was not entitled to an award of attorney fees. Id. at 870.


[49]   In its separate order awarding attorney fees, the trial court found that Surface

       “suffered a pecuniary loss as a result of” the Battershells’ conduct and was

       entitled to an award of attorney fees pursuant to Indiana Code section 34-24-3-

       1. Appellants’ App. p. 21. The trial court concluded that Surface’s “pecuniary

       loss consisted of many items of personal property that were identified as having

       sentimental value, and other property that while [Surface] failed to establish a


       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018   Page 21 of 23
       value for purposes of an award of damages, still were converted nonetheless.”

       Id. at 22.


[50]   Black’s Law Dictionary defines the term “pecuniary” as “of or relating to

       money; monetary.” Black’s Law Dictionary 1152 (7th ed. 1999). And a pecuniary

       loss is defined as “a loss of money or of something having monetary value.” Id.

       at 957. Similarly, the Oxford English Dictionary defines pecuniary as

       “consisting of money; exacting in money.” New Shorter Oxford English Dictionary

       2136 (4th ed. 1993).


[51]   Surface testified that the property the Battershells converted had little to no

       value and the only value was sentimental. Tr. p. 38. A sentimental loss with no

       monetary value is not a pecuniary loss. For this reason, we conclude that the

       trial court erred when it awarded attorney fees to Surface.5 See Coleman, 949

       N.E.2d at 870. We therefore reverse the attorney fee award and remand for

       proceedings consistent with this opinion.


                                                   Conclusion
[52]   The trial court acted within its discretion when it set aside the summary

       judgment entered in the Battershells’ favor. The court’s findings that the

       Battershells breached the lease and converted Surface’s property are supported




       5
        Therefore, we need not address Surface’s claim in his cross-appeal that the trial court should have awarded
       him additional attorney fees.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018          Page 22 of 23
       by the evidence. We also affirm the trial court’s zero-damage award, but as a

       result, must reverse the trial court’s decision to award Surface attorney fees.


[53]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Riley, J., and May, J., concur.




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