                                                                              Nov 06 2015, 5:53 am




      ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      Gordon A. Etzler                                          David W. Westland
      Gordon A. Etzler & Associates, LLP                        Westland & Bennett, P.C.
      Valparaiso, Indiana                                       Schererville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Dean Vander Woude and                                     November 6, 2015
      Timothy Koster,                                           Court of Appeals Case No.
      Appellants-Plaintiffs,                                    64A04-1504-PL-160
                                                                Appeal from the Porter Superior
              v.                                                Court
                                                                The Honorable Roger V. Bradford,
      First Midwest Bank, Successor in                          Judge
      Interest to Bank Calumet, N.A.,                           Trial Court Cause No.
      Appellee-Defendant.                                       64D01-0605-PL-3878




      Najam, Judge.


                                       Statement of the Case
[1]   Dean Vander Woude and Timothy Koster appeal the trial court’s judgment in

      their favor on their complaint against First Midwest Bank (“the Bank”)



      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015           Page 1 of 17
      following a bench trial. Vander Woude and Koster present two issues for our

      review:


              1.      Whether the trial court abused its discretion when it
                      calculated their attorney’s fee award.

              2.      Whether the trial court erred when it denied their request
                      for prejudgment interest.


      We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[2]   This court set out the relevant facts and procedural history in this matter in a

      prior appeal as follows:


              In 1999, Michael and Kim Angelini executed a note and
              mortgage with Bank Calumet, National Association (“Bank
              Calumet”) regarding a Porter County property. Bank Calumet
              mistakenly recorded this mortgage in the Lake County
              Recorder’s Office and not in the Porter County Recorder’s
              Office. The Angelinis defaulted on this note and mortgage and,
              in October 2004, Bank Calumet initiated a foreclosure action in
              Porter Superior Court. In November 2004, the Porter Superior
              Court entered a default judgment. The Angelinis filed for
              bankruptcy soon thereafter, which caused the Porter Superior
              Court to stay the foreclosure.

              The Angelinis also executed a note and mortgage against the
              same property with Bank One[] and defaulted on this note and
              mortgage, too. Bank One filed a foreclosure action in Porter
              Superior Court, and the property was sold at a Sheriff’s sale in
              March 2005 to Dean Vander Woude and Timothy Koster, who
              immediately took possession of the property via a Sheriff's deed.
              A Bank Calumet mortgage lien did not appear on the chain of
      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 2 of 17
        title in the Porter County Recorder’s Office. In May 2005,
        Vander Woude and Koster entered into a purchase agreement to
        sell the property to a third party, scheduled with Ticor Title
        Company to close on or before June 30, 2005, as Vander Woude
        and Koster contend, or July 6, 2005, as FMB contends.

        Meanwhile, the Porter Superior Court lifted the stay of Bank
        Calumet’s foreclosure action and a Sheriff’s sale was scheduled
        for June 2005. In May 2005, upon noticing the newspaper listing
        for a Sheriff’s sale, Vander Woude contends he contacted David
        Westland, a Bank Calumet attorney, to prevent a second Sheriff’s
        sale. Westland does not recall this conversation. The June 2005
        Sheriff’s sale was eventually canceled, but another was later
        scheduled for August 24, 2005.

        Shortly before Vander Woude’s and Koster’s sale of the property
        was to close, Ticor’s title search revealed the Bank Calumet
        foreclosure action. Ticor rescheduled the closing and Vander
        Woude and Koster discounted the sale of the property by
        $15,000. Ticor required Vander Woude and Koster produce
        $96,600, the amount of the listed mortgage in favor of Bank
        Calumet, before issuing clean title and a title insurance policy in
        the sale to the third party. Vander Woude and Koster produced
        and Ticor retained $96,600, and the sale was completed.

        At some point Bank Calumet began to assist Vander Woude and
        Koster in correcting the errors and eliminating the mortgage and
        judgment liens. Specifically, Bank Calumet sent a letter to the
        Porter County Sheriff’s Office dated August 10, 2005, to cancel
        the August 24, 2005[,] Sheriff’s sale. In compliance with a
        demand from Vander Woude’s and Koster’s attorney, Bank
        Calumet completed and recorded a release of mortgage in the
        Lake County Recorder’s Office on September 19, 2005. In
        November 2005, Ticor still had not released escrowed funds to
        Vander Woude and Koster. Bank Calumet requested Ticor do
        so, entered an indemnity agreement with Ticor on November 17,


Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 3 of 17
              2005, and on December 1, 2005, made a last request for Ticor to
              release escrowed funds to Vander Woude and Koster.

              In May 2006, Bank Calumet merged with and into FMB. FMB
              does not dispute that it is the successor in interest to Bank
              Calumet for purposes of this case. Also in May 2006, Vander
              Woude and Koster filed suit against FMB, alleging slander of
              title, intentional interference with a contract, and conversion.
              Pursuant to cross-motions for summary judgment, the trial court
              entered summary judgment in favor of FMB as to intentional
              interference with a contract and conversion, and in favor of
              Vander Woude and Koster as to slander of title. At a February
              2011 jury trial for damages, FMB filed a motion for judgment on
              the evidence at the close of Vander Woude’s and Koster’s case.
              The trial court denied this motion, the jury awarded damages to
              Vander Woude and Koster in the amount of $99,900, and the
              trial court entered a judgment in that amount.


      First Midwest Bank v. Vander Woude, No. 64A04-1103-PL-120, 2012 WL 32082,

      at *1-2 (Ind. Ct. App. Jan. 5, 2012) (footnote omitted) (“First Midwest Bank I”).


[3]   On appeal, we stated the issues for our review and summarized our decision as

      follows:


              FMB raises two issues, which we reorder and restate as: whether
              the trial court erred in granting summary judgment as to slander
              of title in favor of Dean Vander Woude and Timothy Koster and
              denying the same in favor of FMB; and whether the trial court
              erred in denying FMB’s motion for judgment on the evidence
              during a trial for damages. We conclude that the trial court erred
              in granting summary judgment to Vander Woude and Koster as
              to their claim for slander of title because a genuine issue of
              material fact remains. Accordingly, we reverse the trial court’s
              order granting summary judgment, decline FMB’s invitation to
              enter summary judgment in its favor, and remand this case for
      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 4 of 17
              further proceedings on this claim. This nullifies the jury verdict
              regarding damages for FMB’s slander of title, so we need not
              address FMB’s appellate challenge regarding its motion for
              judgment on the evidence.


      Id. at *1.


[4]   On remand, the trial court held a bench trial on July 22 and 23, 2014. The trial

      court took the matter under advisement and issued its order with findings and

      conclusions on March 12, 2015. The trial court found and concluded in

      relevant part as follows:

              37. Plaintiffs incurred attorney fees in the prosecution of this
              action. Exhibit 46 in the bench trial contained several invoices
              and statements from attorney Etzler.

              38. At the trial by jury on damages in this cause which was
              reversed and remanded, the Plaintiffs presented Exhibit 40 which
              were fee statements from attorney Etzler.

              39. From Exhibit 40 admitted at the trial by jury, the Court finds
              that the following charges were applicable to this cause generally,
              not to the trial by jury:

              Invoice No. 1799 dated 6/30/06 in the amount of $3,100.00;

              Invoice No. 3386 dated 1/2/08 in the amount of $550.00; and

              Invoice No. 2268 dated 1/31/08 in the amount of $3,520.00.

              40. From Exhibit 46 submitted at the bench trial in this cause,
              the Court finds that Invoice No. 7646 involves expenses from the
              jury trial and are not recoverable.


      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 5 of 17
        41. Invoice No. 7647 contains two (2) items that are not
        applicable to this bench trial, that being the entry from 6/11/12
        of $400.00 and the entry from 2/12/13 in the amount of $400.00,
        leaving $8,304.50 applicable to this trial.

        42. From Invoice No. 7648, none of those charges are applicable
        to this cause as they are all related to the appeal of the jury trial.

        43. The charges shown on Statement No. 807 dated 9/30/13 in
        the amount of $850.00 apply to this cause.

        44. From Statement No. 2151 dated 11/30/13, $250.00 are
        applicable to this cause.

        45. From Statement No. 3387 dated 7/18/14, $6,450.00 are
        related to this cause.

        46. Exhibit 46 did not include any time for the actual bench trial
        in this cause. The bench trial lasted three (3) hours on July 21,
        2014 and four and one-half (4 1/2) hours on July 22, 2014. The
        applicable attorney fees for that time amount to $1,500.00.

                                               ***

                                CONCLUSIONS OF LAW

                                               ***

        4. The recording of the mortgage at issue in Lake County placed
        a cloud upon the title to 601 Franklin Street, Valparaiso, Indiana
        as noted by Pioneer Ticor Title in its special exceptions. The
        filing of a mortgage foreclosure action further placed a cloud on
        the title of 601 Franklin Street, Valparaiso, Indiana as did the
        obtaining of a default judgment in the mortgage foreclosure
        action.



Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 6 of 17
              5. Those items were a slander of the title to 601 Franklin Street,
              Valparaiso, Indiana.

                                                     ***

              7. Defendant, Bank Calumet’s slander of title was the proximate
              cause of Ticor Title requiring Plaintiffs to place in escrow
              $96,600.

              8. That resulted in the damages found in paragraphs 32, 34, and
              35 of the Findings of Fact, totaling $54,614.30. The Court
              concludes that Plaintiffs are entitled to recover that amount from
              Defendant, Bank Calumet.

              9. The Court concludes that Plaintiffs are entitled to recover
              attorney fees in this cause and the amounts they are entitled to
              recover are set out in paragraph[s] 39, 41, 43, 44, 45, and 46 of
              the Findings of Fact, a total of $24,524.50.


      Appellants’ App. at 162-66. This appeal ensued.


                                     Discussion and Decision
                                       Issue One: Attorney’s Fees

[5]   Vander Woude and Koster contend that the trial court abused its discretion

      when it did not award them the full amount of attorney’s fees they had

      requested. The award or denial of attorney’s fees is “in the exercise of a sound

      discretion, and in the absence of an affirmative showing of error or abuse of

      discretion we must affirm [the trial court’s] order.” Malachowski v. Bank One,

      Indianapolis, N.A., 682 N.E.2d 530, 533 (Ind. 1997) (quoting Zaring v. Zaring,

      219 Ind. 514, 39 N.E.2d 734, 737 (1942)). We review both the decision to


      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 7 of 17
      award attorney’s fees as well as the amount of the fee, which must be supported

      by the evidence. City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000,

      1013 (Ind. Ct. App. 2011), trans. denied. Indiana adheres to the American rule,

      which states that, in general, a party must pay his own attorney’s fees absent an

      agreement between the parties, a statute, or other rule to the contrary. R.L.

      Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012).


[6]   Indiana Code Section 32-20-5-2 provides in relevant part that, in any action to

      quiet title to land, if the court finds that “a person has filed a claim only to

      slander title to land,” the court shall award the plaintiff “all the costs of the

      action, including attorney’s fees that the court allows to the plaintiff[.]” (Emphasis

      added). Thus, in this slander of title action, Vander Woude and Koster are

      entitled to attorney’s fees, but the trial court has discretion in determining the

      amount of those fees.


[7]   A trial court shall award only those attorney’s fees that are reasonable. “[O]ur

      Rules of Professional Conduct give us guidance as to factors to be considered in

      determining the reasonableness of attorney fees[.]” In re Order for Mandate of

      Funds, 873 N.E.2d 1043, 1049 (Ind. 2007). In particular, Professional Conduct

      Rule 1.5(a) lists the following non-exclusive factors to be considered:


              (1) the time and labor required, the novelty and difficulty of the
              questions involved, and the skill requisite to perform the legal
              service properly;




      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015    Page 8 of 17
              (2) the likelihood, if apparent to the client, that the acceptance of
              the particular employment will preclude other employment by
              the lawyer;

              (3) the fee customarily charged in the locality for similar legal
              services;

              (4) the amount involved and the results obtained;

              (5) the time limitations imposed by the client or by the
              circumstances;

              (6) the nature and length of the professional relationship with the
              client;

              (7) the experience, reputation, and ability of the lawyer or
              lawyers performing the services; and

              (8) whether the fee is fixed or contingent.


[8]   Here, in its findings and conclusions, the trial court did not identify or address

      any of those factors in determining the attorney’s fee award to Vander Woude

      and Koster. Neither did the trial court explicitly award attorney’s fees based on

      their reasonableness. Rather, the trial court categorically excluded from its

      award all claimed attorney’s fees related to the jury trial, which it described as

      “not recoverable,” and it also excluded from the award fees “related to the

      appeal of the jury trial.”1 Appellants’ App. at 162. The trial court included

      only fees “applicable” to the bench trial, which took place on remand after the



      1
       Again, on appeal, we reversed the trial court’s entry of summary judgment in favor of Vander Woude and
      Koster and the jury’s damages award.

      Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015                Page 9 of 17
       first appeal. Id. Vander Woude and Koster maintain that the attorney’s fee

       award was an abuse of discretion, and we must agree.


[9]    In its closing argument to the trial court, the Bank argued that Vander Woude

       and Koster were not entitled to attorney’s fees incurred in the course of the

       summary judgment and jury trial on damages because that judgment and

       verdict were reversed on appeal in First Midwest Bank I. In particular, the Bank

       argued that only a “prevailing party” is entitled to attorney’s fees. Id. at 153.

       Thus, the Bank alleged, because Vander Woude and Koster did not prevail in

       the prior appeal, “attorney[’s] fees from the first trial or the appeal are not

       proper.” Id. And, in its order, the trial court awarded only those attorney’s fees

       related to the bench trial, which took place on remand. Thus, it appears that

       the trial court agreed with the Bank on this issue.


[10]   While the trial court has broad discretion in determining the amount of an

       attorney’s fee award, here, the court’s stated reasons for the award appear to be

       based on the Bank’s misunderstanding of the applicable law. Again, Vander

       Woude and Koster are entitled to attorney’s fees under Indiana Code Section

       32-20-5-2, which provides for attorney’s fees to the plaintiff where a person has

       filed a claim only to slander title to land. At trial, the Bank argued that Vander

       Woude and Koster were entitled to only those attorney’s fees they incurred as

       the “prevailing party”—that is, the fees they incurred after remand from the first

       appeal. Appellants’ App. at 153. On appeal, the Bank cites to Indiana Code

       Section 34-52-1-1(b), the General Recovery Rule, and case law relevant to that

       statute in support of that contention.

       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015   Page 10 of 17
[11]   But the Bank’s reliance on that statute and related case law is misplaced.

       Nothing in the record indicates that the trial court awarded attorney’s fees to

       Vander Woude and Koster based on Indiana Code Section 34-52-1-1(b), which

       provides that,


                [i]n any civil action, the court may award attorney’s fees as part
                of the cost to the prevailing party, if the court finds that either
                party:

                         (1) brought the action or defense on a claim or
                         defense that is frivolous, unreasonable, or groundless;

                         (2) continued to litigate the action or defense after the
                         party’s claim or defense clearly became frivolous,
                         unreasonable, or groundless; or

                         (3) litigated the action in bad faith.


[12]   That statute does not apply here. Rather, again, Indiana Code Section 32-20-5-

       2 applies and provides that a plaintiff who prevails in a slander of title action is

       entitled to “all the costs of the action, including attorney’s fees that the court

       allows to the plaintiff[.]”2 Likewise, the Bank’s reliance on case law based on

       Indiana Code Section 34-52-1-1(b) is misplaced.3




       2
         Unlike Indiana Code Section 34-52-1-1(b), Indiana Code Section 32-20-5-2 does not refer to “the prevailing
       party” but, instead, provides for attorney’s fees to a plaintiff if the court finds for him on his claim of slander
       of title to land. Thus, had the trial court entered judgment in favor of the Bank on Vander Woude and
       Koster’s complaint, the Bank would have been “the prevailing party” but would not have been entitled to
       attorney’s fees under Section 32-20-5-2.
       3
         In particular, citing to Ashbaugh v. Horvath, 859 N.E.2d 1260, 1268-69 (Ind. Ct. App. 2007), the Bank states
       that, “[w]here an Appellate Court reverses the judgment of a lower court, the party granted judgment by the

       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160         | November 6, 2015                   Page 11 of 17
[13]   The Bank also states that “[i]t is well settled that a trial court’s judgment that

       has been reversed is a nullity, and a reversal returns the parties to the position

       they occupied prior to the judgment” reversed on appeal. Appellee’s Br. at 4.

       In support of that contention, the Bank cites Tioga Pines Living Center, Inc. v.

       Indiana Family and Social Services Administration, 760 N.E.2d 1080, 1088 (Ind.

       Ct. App. 2001), and Ebersol v. Mishler, 775 N.E.2d 373, 382 (Ind. Ct. App.

       2002). But that citation to the Tioga Pines opinion has to do with prejudgment

       interest, not attorney’s fees, so it does not support the Bank’s contention in this

       appeal.4 760 N.E.2d at 1088.


[14]   And in Ebersol, in addressing attorney’s fees, we stated as follows:


                 Here, since we are remanding for further proceedings, there is no
                 prevailing party yet, and there is no basis to award attorney’s fees
                 at this time. Thus, we reverse the trial court’s attorney’s fees
                 award. Upon remand, once this case has been resolved by the
                 trier of fact, the trial court may revisit the issue of awarding
                 attorney’s fees under Indiana Code [Section] 34-52-1-1.




       lower court can no longer be said to be the prevailing party” and “there [is] no longer any statutory authority
       to maintain her award of attorney’s fees.” Appellee’s Br. at 4. But Ashbaugh is distinguishable from the
       instant case for two reasons. First, in Ashbaugh, the attorney’s fees were awarded pursuant to Indiana Code
       Section 34-52-1-1. And second, while we reversed the trial court’s entry of summary judgment in favor of the
       plaintiff in Ashbaugh, we also entered summary judgment in favor of the defendant. 859 N.E.2d at 1268.
       Thus, not only was the plaintiff not entitled to attorney’s fees, but the defendant was the prevailing party in
       that appeal, and there were no further proceedings. Here, in contrast, while Vander Woude and Koster did
       not prevail in the first appeal, they prevailed on remand. Ashbaugh is inapposite here.
       4
           And the Bank makes no argument that the same principle should apply to the award of attorney’s fees.


       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160       | November 6, 2015                 Page 12 of 17
       775 N.E.2d at 382 (emphases added). Ebersol does not support the Bank’s

       contention in this appeal for two reasons. First, the discussion in Ebersol does

       not pertain to attorney’s fees under Indiana Code Section 32-20-5-2. Second, in

       Ebersol, as here, we reversed the trial court’s entry of summary judgment and

       remanded for further proceedings. And, while we stated that there was “no

       prevailing party yet,” we did not foreclose an award of attorney’s fees but, rather,

       explicitly left the issue of attorney’s fees open to the trial court’s discretion at

       the conclusion of the proceedings on remand. Id. In sum, the Bank’s

       argument—on which the trial court apparently relied—with respect to Indiana

       Code Section 34-52-1-1(b) and related case law is incorrect.


[15]   While a plaintiff must prevail in a slander of title action to be awarded

       attorney’s fees under Indiana Code Section 32-20-5-2, nothing in the statute

       requires the apportionment of attorney’s fees based on a plaintiff’s intermediate

       success or failure at various stages of the proceedings leading up to the final

       judgment in his favor. At the end of the day, Vander Woude and Koster

       secured a final judgment on their claim against the Bank. The score at halftime

       may be worth noting, but the final score is what counts. Our review of relevant

       case law does not reveal any basis for the trial court’s categorical exclusion from

       Vander Woude and Koster’s attorney’s fee award those fees related to the

       summary judgment, jury trial, or first appeal.5 Instead, the trial court shall




       5
         In Benaugh v. Garner, 876 N.E.2d 344, 348 (Ind. Ct. App. 2007), we observed, in dicta, that a trial court has
       discretion to deny attorney’s fees related to a party’s successful summary judgment motion that was
       subsequently reversed on appeal. However, in that case, it was clear that the party’s summary judgment

       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160       | November 6, 2015                  Page 13 of 17
       determine the attorney’s fee award based on reasonableness, guided by

       Professional Conduct Rule 1.5(a).


[16]   Still, contrary to Vander Woude and Koster’s contention that they are entitled

       to all of the attorney’s fees they requested,6 the trial court has discretion under

       the applicable statute to determine a reasonable amount of the attorney’s fee

       award. That being said, the trial court explicitly excluded from the attorney’s

       fee award those fees incurred prior to the first appeal. Because the court’s

       findings track the Bank’s erroneous argument that the attorney’s fees are limited

       because of the Bank’s success in the first appeal, the attorney’s fee award is

       based on a faulty premise, and we cannot say that the award is correct. We

       reverse the attorney’s fee award and remand to the trial court with instructions

       to award Vander Woude and Koster reasonable attorney’s fees based on the

       factors set out in Professional Conduct Rule 1.5(a).




       motion had “forced” the other party to respond to the motion and pursue a successful appeal. Id. at 348.
       And we observed that “[i]t is within the trial court’s discretion to find that the appellees should not have to
       pay for [the appellant’s] attorney fees related to this eighteen-month portion of the litigation, which was
       based on what was essentially [the appellant’s] invited error and compounded by the trial court’s erroneous
       summary judgment order.” Id. Here, in contrast, the parties filed cross-motions for summary judgment, so
       the Bank was complicit in causing the additional attorney’s fees incurred as a result of those proceedings.
       6
         Vander Woude and Koster cite Country Contractors, Inc. v. Westside Storage of Indianapolis, Inc., 4 N.E.3d 677
       (Ind. Ct. App. 2014), in support of their contention. But in that case, where we affirmed the trial court’s
       award of all of the requested attorney’s fees in a slander of title action, we based our holding on our
       determination that the award was based on “the court’s unique expertise and familiarity with the case and
       with the customary legal fees charged in Hendricks County” and was within the trial court’s broad discretion.
       Id. at 694. Nothing in Country Contractors, Inc. supports Vander Woude and Koster’s contention that the court
       has no discretion to award less than the requested amount of attorney’s fees.

       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160        | November 6, 2015                  Page 14 of 17
                                         Issue Two: Prejudgment Interest

[17]   Vander Woude and Koster next contend that the trial court erred when it

       denied their request for prejudgment interest. As we discuss below, the Tort

       Prejudgment Interest Statute (“TPIS”) applies here, and an award under the

       TPIS is discretionary. Inman v. State Farm Mut. Auto. Ins. Co., 981 N.E.2d 1202,

       1204 (Ind. 2012). Thus, we review a trial court’s denial of prejudgment interest

       under the TPIS for an abuse of discretion. Kosarko v. Padula, 979 N.E.2d 144,

       146 (Ind. 2012). The trial court abuses its discretion when its decision is clearly

       against the logic and effect of the facts and circumstances before the court or if

       the court has misinterpreted the law. Id.


[18]   The TPIS is comprised of Indiana Code Sections 34-51-4-1 to -9, and it governs

       the award of prejudgment interest in any civil action arising out of tortious

       conduct.7 Indiana Code Section 34-51-4-6 provides as follows:


                  This chapter does not apply if:

                  (1) within one (1) year after a claim is filed in the court, or any
                  longer period determined by the court to be necessary upon a
                  showing of good cause, the party who filed the claim fails to
                  make a written offer of settlement to the party or parties against
                  whom the claim is filed;

                  (2) the terms of the offer fail to provide for payment of the
                  settlement offer within sixty (60) days after the offer is accepted;




       7
           Slander of title is a tort.


       Court of Appeals of Indiana | Opinion 64A04-1504-PL-160   | November 6, 2015     Page 15 of 17
               or

               (3) the amount of the offer exceeds one and one-third (1 1/3) of
               the amount of the judgment awarded.


       Thus, a prerequisite to the recovery of prejudgment interest is a settlement

       letter. Alsheik v. Guerrero, 979 N.E.2d 151, 154 (Ind. 2012). The purpose of the

       settlement letter is to afford the adverse party notice of a claim and provide it

       with an opportunity to engage in meaningful settlement. Id.


[19]   Here, Vander Woude and Koster concede that they “did not make an offer of

       settlement in accordance [with] the [TPIS.]” Reply Br. at 8. But they contend

       that the Bank argues the applicability of the TPIS for the first time on appeal.

       Thus, they maintain that the Bank has waived this issue. That contention is

       without merit. The TPIS applies in this case, as a matter of law.


[20]   Vander Woude and Koster argue, in the alternative, that the common law

       governing the award of prejudgment interest applies and requires an award in

       this case. But our supreme court has expressly held that “the TPIS

       unmistakably implies the legislature’s intent to substitute the statute for the

       common law with respect to cases falling within the scope of the TPIS.”

       Kosarko, 979 N.E.2d at 149-50. Because Vander Woude and Koster failed to

       comply with the TPIS, they cannot demonstrate that the trial court abused its

       discretion when it denied their request for prejudgment interest.


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



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Kirsch, J., and Barnes, J., concur.




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