MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Apr 16 2020, 8:32 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Elizabeth A. Coleman                                      CIOBANU LAW, P.C.
The Law Offices of Alan Lani                              Andrea L. Ciobanu
Louisville, Kentucky                                      Ciobanu Law, P.C.
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE
                                                          OVIDIU MIHUTI
                                                          Rebecca J. Berfanger
                                                          RJ Berfanger Law, LLC
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Supervised                           April 16, 2020
Estate of Bogdan T. Mihuti:                               Court of Appeals Case No.
                                                          19A-ES-1945
                                                          Appeal from the Hendricks
Layla Cristina Mihuti,                                    Superior Court
Appellant/Cross-Appellee,                                 The Honorable Peter R. Foley,
                                                          Special Judge
        v.
                                                          Trial Court Cause No.
                                                          32D05-1512-ES-256
Ciobanu Law, P.C., et al.,
Appellees/Cross-Appellants.



Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020                 Page 1 of 23
      Bailey, Judge.



                                             Case Summary
[1]   Bogdan Mihuti (“Bogdan”) died intestate in 2015. After the estate was opened,

      litigation ensued that involved (1) Bogdan’s estranged spouse, Layla Mihuti

      (“Layla”), and (2) Bogdan’s brother, Ovidiu Mihuti (“Ovidiu”). Ovidiu was

      initially appointed as the personal representative and Eizabeth Ruh (“Ruh”)

      was later appointed as the successor personal representative. At one point,

      Layla alleged that Ovidiu converted property, which led to a default judgment

      on the issue of liability. Layla also alleged that Ruh neglected the estate, which

      led to a settlement agreement. Throughout the case, there were disputes over

      the responsibility for fees incurred in the matter, including whether certain

      attorney’s fees and personal-representative fees were recoverable against the

      estate. The disputes involved fees billed by Ciobanu Law, P.C. (“Ciobanu

      Law”), which represented Ovidiu and was involved in early estate-related

      filings, and Coffin, Coffin & Blackman (“Coffin”), which represented Ruh.


[2]   Layla now appeals and Ovidiu cross-appeals.1


[3]   We affirm.




      1
          Ciobanu Law actively participates on appeal. However, Ruh and Coffin Law do not actively participate.


      Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020                  Page 2 of 23
                                                    Issues
[4]   Layla presents the following consolidated and restated issues:


              1.       Whether the court abused its discretion in allowing the
                       recovery of fees by Ciobanu Law, Ruh, and Coffin.


              2.       Whether the court abused its discretion by declining to
                       declare Ovidiu or Ciobanu Law responsible for attorney’s
                       fees due to the filing of purportedly meritless petitions.


              3.       Whether the court abused its discretion in its valuation
                       and categorization of certain property when it awarded
                       damages on the conversion claim against Ovidiu.


[5]   Ovidiu presents the following consolidated and restated issues, which concern

      the claim of conversion that led to a default judgment and a damages award:


              4.       Whether the court abused its discretion in denying a
                       motion to set aside the default judgment.


              5.       Whether the court abused its discretion in admitting
                       certain evidence at the damages hearing.


              6.       Whether the evidence of damages is too speculative.


                            Facts and Procedural History
[6]   Bogdan died intestate in December 2015, at which time there was a pending

      petition to dissolve the marriage between Bogdan and Layla. About seven

      months before Bogdan died, Layla moved out of the marital residence—which


      Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 3 of 23
      Bogdan owned—and sought an Order for Protection, alleging that Bogdan

      threatened violence and was both financially and emotionally abusive. A court

      issued an Ex Parte Order for Protection. At some point after the issuance of

      that order, Bogdan petitioned to dissolve the marriage. The protective order

      was eventually replaced with a no-contact order in the pending dissolution case.


[7]   In late December 2015, Ovidiu—a resident of Canada—filed a Petition for

      Issuance of Letters of Administration and for Supervised Administration of the

      Estate. The court appointed Ovidiu as the initial personal representative. In

      January 2016, Ovidiu filed a Petition to Determine Heirship (the “Heirship

      Petition”), alleging that Layla was ineligible to inherit. In support of the

      Heirship Petition, Ovidiu cited two provisions of the Indiana Code concerning

      spousal heirship—one addressing abandonment and the other addressing

      adultery and abandonment. The Heirship Petition was eventually withdrawn.


[8]   In February 2016, the trial court appointed Ruh as the successor personal

      representative. Bogdan’s house later went into foreclosure and his vehicle was

      impounded. These events led to allegations that Ruh neglected the estate. Ruh,

      with the assistance of counsel, defended against these allegations. A settlement

      was reached with no admission of liability. Although Coffin had been assisting

      Ruh with the estate-related matters, Ruh obtained different counsel to defend

      against the allegations of neglect—but Coffin had some level of initial

      involvement. Eventually, Ciobanu Law, Ruh, and Coffin sought to recover

      fees against the estate. Layla challenged whether the fees were recoverable.

      She also argued that the Heirship Petition was meritless, and that Ovidiu and

      Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 4 of 23
       Ciobanu Law should be responsible for all attorney’s fees incurred in the

       matter. The court declined to hold Ovidiu and Ciobanu Law responsible. It

       also determined that most of the fees were recoverable against the estate. Ruh

       recovered—in pertinent part—$1,358.80 for services as personal representative

       from July 27, 2017, through June 18, 2018; Coffin recovered $21,835.00 in

       attorney’s fees; and Ciobanu Law recovered $6,691.32 in attorney’s fees.


[9]    Layla filed a Petition for Recovery on Behalf of the Estate, alleging that Ovidiu

       converted property when he had access to Bogdan’s house. Ovidiu did not

       personally appear at a hearing on the conversion claim—however, his counsel

       was present. When Ovidiu failed to personally attend the hearing, Layla sought

       a default judgment, arguing that Ovidiu had been issued a subpoena and was a

       critical witness. Layla also pointed out that the court had previously ordered

       Ovidiu to personally attend the hearing. The court granted Layla’s request,

       entering default judgment against Ovidiu on the issue of liability. The court

       then heard evidence regarding damages. Layla presented evidence about the

       value of various items—among them, several watches and a Versace bracelet.

       Layla sought $70,146.99 in damages on the conversion claim, characterizing

       the converted property as household goods belonging to a surviving spouse.


[10]   Following the hearing, the court entered a written order in which it awarded

       Layla $42,546.99 for the conversion of household goods. The court awarded

       the estate $10,890.00 for the conversion of watches and watch winders, which

       the court determined “were not ‘household goods’ and were estate property.”

       Appellant’s App. Vol. II at 61. In calculating damages, the court noted that it

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 5 of 23
       did not identify credible evidence of the value of a certain gold watch and so it

       “value[d] the watch at $0.00.” Id. The trial court also noted a failure of proof

       concerning the value of the Versace bracelet: “Layla testified that she purchased

       the bracelet for the sum of $10,000.00 but failed to provide a current value for

       the bracelet. Any valuation by the Court would be speculative and Layla has

       failed to meet her burden to establish the value of the bracelet.” Id. at 62.


[11]   Layla and Ovidiu filed motions to correct error—and Ovidiu sought to set aside

       the default judgment. The court denied pertinent portions of those motions.


[12]   Layla now appeals. Ovidiu cross-appeals.



                                  Discussion and Decision
[13]   In general, we review a ruling on a motion to correct error for an abuse of

       discretion. State v. Reinhart, 112 N.E.3d 705, 709-10 (Ind. 2018). However, to

       the extent the motion rests on a question of law, our review is de novo. Id. at

       710. This appeal also involves the denial of a motion to set aside a default

       judgment, which we review for an abuse of discretion. Huntington Nat. Bank v.

       Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015). An abuse of discretion

       occurs when the decision is clearly against the logic and effect of the facts and

       circumstances. Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013).


[14]   Where—as here—the trial court enters findings of fact and conclusions of law

       on its own motion, we review for clear error. Ind. Trial Rule 52(A). “A finding

       or conclusion is clearly erroneous if the appellate court’s review leaves it with

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 6 of 23
       the firm conviction that a mistake has been made.” Salyer v. Washington Regular

       Baptist Church Cemetery, No. 20S-PL-102, 2020 WL 1164272, at *2 (Ind. March

       11, 2020). In conducting our review, we shall give “due regard . . . to the

       opportunity of the trial court to judge the credibility of the witnesses.” T.R.

       52(A). Indeed, our role is not to reweigh the evidence. See id. We look to

       whether the evidence supports the findings and the findings support the

       judgment. S.H. v. D.W., 139 N.E.3d 214, 220-21 (Ind. 2020). Moreover, to the

       extent the findings do not cover all of the issues, we apply a general-judgment

       standard, T.R. 52(D), under which we may affirm on any theory consistent

       with the evidence, Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997).


                                            Recovery of Fees
[15]   In intestate matters, a court may compensate a personal representative for

       services as the court “deem[s] just and reasonable.” Ind. Code § 29-1-10-13.

       Moreover, “[a]n attorney performing services for the estate at the instance of

       the personal representative shall have such compensation therefor out of the

       estate as the court shall deem just and reasonable.” Id. “The amount of fees to

       be awarded is within the trial court’s discretion and will not be disturbed absent

       an abuse of discretion.” Ford v. Peoples Tr. & Sav. Bank, 651 N.E.2d 1193, 1194

       (Ind. Ct. App. 1995), trans. denied. “In determining a reasonable amount of

       fees, the trial court may consider many factors, including the labor performed,

       the nature of the estate, difficulties in recovering assets or locating devisees, and

       the peculiar qualifications of the [personal representative].” Id. As to a



       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 7 of 23
       reasonable amount of attorney’s fees, the court may also consider the guidelines

       for attorney’s fees set forth in the Indiana Rules of Professional Conduct. Id.


[16]   Here, the court determined that both Ruh and Coffin could recover fees from

       the estate. We note that neither Ruh nor Coffin filed a brief. We therefore

       need not develop arguments for them and may reverse upon a showing of prima

       facie error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). In this context,

       prima facie error is error at first sight, on first appearance, or on the face of it. Id.


                                                        Ruh
[17]   The trial court determined that Ruh could recover $1,358.80 for her services

       from July 27, 2017, through June 18, 2018, for which Ruh billed at a rate of $60

       per hour. Layla challenges the full amount, arguing that the associated invoices

       “essentially represent[] two categories: Preparation for and defense of the claim

       against [Ruh] . . . and her presence at the trial May 24, 2018, regarding the fees

       payable to [Ciobanu Law].” Br. of Appellant at 13. Layla claims the fees are

       unreasonable because Ruh was not acting to further the interests of the estate.


[18]   As to attending court on May 24, 2018, entries on the pertinent invoice show

       fees of about $500. Although Layla suggests that attendance was optional,

       Layla has not directed us to a court order expressly excusing Ruh—the personal

       representative—from attending the hearing held in the estate cause. Thus, we

       are not persuaded that billing for attendance at that hearing was unreasonable.


[19]   As to the remaining $800 or so, the invoices include entries for paying bills,

       issuing checks, depositing checks, gathering documents, making calls, sending
       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 8 of 23
       e-mails, and running reports. Layla suggests that the invoices “essentially”

       reflect work defending the allegations against Ruh. Yet, Layla did not develop

       an adequate record to support her preferred categorization of the fees. Indeed,

       apart from isolated testimony that one $60 entry involved an e-mail to Ruh’s

       defense counsel, there is no indication that the fees relate to Ruh’s defense.


[20]   Ultimately, we are not persuaded that the trial court abused its discretion in

       deciding that $1,358.80 was a just and reasonable amount to compensate Ruh

       for about eleven months of service as a personal representative. Moreover,

       even if we identified error, the amount at issue here is de minimis. See generally D

       & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind. 2003) (discussing the

       “practical doctrine” that “proclaims that the law does not redress trifles”).


                                                      Coffin
[21]   Layla challenges approximately $11,000 of the amount recovered by Coffin,

       which billed at a rate of $275 per hour. Layla summarizes her challenge:


               [T]he time objected to breaks out as follows, of which there is no
               factual dispute: 10.9 hours working on the foreclosure action, 4.5
               hours necessary to recover the BMW from impound, 3.8 hours in
               conference with Andrea Ciobanu, 10.4 hours in defense of the
               claim for recovery against Elizabeth Ruh, 0.5 hours dealing with
               correspondence regarding the decedent’s 401(k) account which
               was ignored, 4.6 hours of general review, and 6.0 hours for Roger
               Coffin’s presence at trial regarding the fees payable to [Ciobanu
               Law] (For greater detail, see the cross-examination of Roger
               Coffin during the 8/31/18 hearing, found at Transcript Vol. 2 p.
               160 line 12 through p. 174 line 2, which is incorporated by
               reference but not fully restated.) There was no factual dispute

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 9 of 23
               that the hours occurred as stated and that they were for the
               matters described; only that as a matter of law said items are not
               entitled to priority payment from the funds of the estate because
               said matters were not, as a matter of law, done in reasonable
               furtherance of any bona fide interest of the estate.


       Br. of Appellant at 12.


[22]   Layla challenges 15.9 hours—or $4,372.50 of the $11,000 or so—for work

       related to (1) the foreclosure action; (2) the impounded vehicle; and (3) the

       401(k) account. Layla points out that “any objection to attorney’s fees . . . was

       expressly reserved from the settlement” with Ruh. Br. of Appellant at 11. She

       contends that “the need for work by legal counsel arose from the neglect and

       unreasonable delay in administration by . . . Ruh,” and so “any liability for the

       associated legal fees must be borne by . . . Ruh individually, not paid by the

       funds of the estate.” Id. Yet, irrespective of why this work was necessary, there

       is no question that the work benefitted the estate. Thus, we are unpersuaded

       that the court abused its discretion by allowing Coffin to recover these fees.


[23]   As to the six hours for attendance at a hearing, Layla has not demonstrated that

       the court excused Ruh—and, by extension, counsel—from attending a hearing

       held in the estate cause. We are also unpersuaded that the court abused its

       discretion by allowing the recovery of 3.8 hours of conference time between

       Coffin—counsel for the successor personal representative—and Ciobanu Law—

       counsel for the initial personal representative. Counsel from Coffin explained

       that a conference was held because prior counsel “had recollection of some of

       the facts of how things unfolded, she knew some things . . . that we had to try to
       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 10 of 23
       piece together, you know, who had access to the house, who didn’t, what items

       did Ovidiu remove, which ones were brought back, how did they get to our

       office.” Tr. Vol. 2 at 167. In this protracted estate matter, we cannot say the

       court awarded unreasonable fees for conferencing. Along these lines, we are

       unpersuaded of an abuse of discretion regarding 4.6 hours of general review.


[24]   That leaves the 10.4 hours that Layla alleges went to “defense of the claim for

       recovery against Elizabeth Ruh.” Br. of Appellant at 12. As counsel from

       Coffin explained, at least some of that time was spent reviewing Layla’s petition

       against Ruh—a document filed in the estate cause—as counsel “wanted to get

       the facts” about that matter. Tr. Vol. 2 at 170. We cannot say it is unjust or

       unreasonable to permit Coffin to recover time for reviewing that filing. See I.C.

       § 29-1-10-13 (“An attorney performing services for the estate at the instance of

       the personal representative shall have such compensation therefor out of the

       estate as the court shall deem just and reasonable.”). To the extent a subset of

       those 10.4 hours crossed over into the defense of Ruh’s interests, we are again

       confronted with a de minimis amount. Indeed, between Ruh’s de minimis fees

       discussed above and this subset of 10.4 hours, Layla’s challenge to defense-

       related fees concerns a few thousand dollars—at most. We therefore decline to

       disturb that portion of the trial court order concerning fees for Ruh and Coffin. 2




       2
        Layla points out that Ruh and Coffin do not actively participate in this appeal. She cites a 1933 case for the
       proposition that the failure to actively participate on appeal “may be considered a confession of error.”
       Reply Br. of Appellant at 6. However, we adhere to our well-established standard allowing reversal upon a
       showing of prima facie reversible error. See Morton, 898 N.E.2d at 1199. Layla has not made that showing.

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020                   Page 11 of 23
                                                Ciobanu Law
[25]   Layla argues that Ciobanu Law is not entitled to $6,691.32 for fees related to

       the early estate-related filings for Ovidiu—i.e., the work on opening the estate

       and preparing the Heirship Petition. According to Layla, “the entirety of the

       work” giving rise to the fees “was of no legal merit.” Br. of Appellant at 10.


                                               Opening the Estate

[26]   Layla asserts that Ovidiu—a resident of Canada—“could not have served as

       personal representative based on the petition filed.” Id. at 9. Directing us to

       qualifications set forth in Indiana Code Section 29-1-10-1, Layla argues that

       Ovidiu did not strictly comply with certain statutory subsections because he did

       not “list a joint personal representative who was a resident of Indiana, nor did

       he post a bond of any value.” Br. of Appellant at 9. Yet, regardless of whether

       the challenged petition strictly complied with the statute, Ovidiu was appointed

       personal representative and his petition initiated the proceedings that eventually

       resolved Bogdan’s estate to the benefit of his heirs—including Layla. Thus, we

       disagree with Layla’s contention that the work was of no legal merit.


                                                Heirship Petition

[27]   Layla briefly argues that the Heirship Petition was meritless because Ovidiu

       lacked standing to “complain about an inheritance” because he was not an heir.

       Br. of Appellant at 9. However, even if we assume that the Heirship Petition

       would not have benefitted Ovidiu, a successful petition would have benefited




       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 12 of 23
       Maria Mihuti—Bogdan’s mother—who was a remaining heir. Thus, we are

       not persuaded that any standing issue rendered the petition devoid of merit.


[28]   Turning to the Heirship Petition, Ovidiu alleged “good cause to believe” that,

       when Bogdan died, Layla was “living in adultery and/or had abandoned

       [Bogdan].” Appellant’s App. Vol. II at 66. The petition cites Indiana Code

       Section 29-1-2-14, which provides as follows: “If either a husband or wife shall

       have left the other and shall be living at the time of his or her death in adultery,

       he or she as the case may be shall take no part of the estate or trust of the

       deceased husband or wife.” The petition also cites Indiana Code Section 29-1-

       2-15, which provides as follows: “If a person shall abandon his or her spouse

       without just cause, he or she shall take no part of his or her estate or trust.”


[29]   Layla argues that the Heirship Petition was meritless because it was “legally

       impossible” to establish that Layla abandoned Bogdan. Id. She points out that

       it was Bogdan who initiated proceedings to dissolve the marriage, seeking

       bifurcated proceedings to expedite the dissolution. Layla claims that Bogdan

       “affirmatively sought dissolution . . . and separation.” Id.


[30]   In petitioning to dissolve the marriage, Bogdan alleged that the “[p]arties

       separated and ceased living as Husband and Wife on or about May 17, 2015.”

       App. Vol. II at 69. There is evidence that Layla left the marital residence when

       Bogdan was out of town. Layla then sought a protective order and, at some

       point thereafter, Bogdan petitioned to dissolve the marriage. During the




       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 13 of 23
       proceedings on the protective order, Layla claimed that she fled because

       Bogdan threatened violence and was both financially and emotionally abusive.


[31]   In defending the recovery of its fees, Ciobanu Law elicited testimony from

       Simona Mihuti (“Simona”)—Ovidiu’s wife—who claimed that she went to the

       Ciobanu Law office and told counsel that Layla had engaged in adultery and

       “was planning for many years to leave Bogdan.” Tr. Vol. 2 at 106. There was

       also testimony about Ciobanu Law’s theory for the Heirship Petition, which

       was that Layla left Bogdan “well before the dissolution” and the protective

       order Layla sought “was kind of a ruse.” Id. at 60. Moreover, there is also

       evidence that Ciobanu Law obtained a copy of an apartment lease executed on

       May 7, 2015. The apartment lease shows two residents: Layla and a Nicolae.


[32]   Although Layla argues that seeking dissolution of marriage cuts off any possible

       claim of abandonment, we are not persuaded that the law is well-settled in this

       area. Indeed, because there was a colorable argument to support the Heirship

       Petition, we discern no abuse of discretion with respect to the associated fees.3


                                                      Fee Shifting

[33]   Focusing on fee-shifting provisions in the Indiana Code, Layla claims that

       Ovidiu “is liable for every party’s attorney’s fees for having filed a meritless




       3
         In the pertinent order, the trial court noted in passing that the Heirship Petition “was filed but then
       withdrawn and no appreciable fees were incurred in defense of the [Heirship] Petition.” Appellant’s App.
       Vol. II at 60. Layla challenges the trial court’s characterization of her attorney’s fees. However, because we
       regard the challenged remark as mere surplusage, we need not address the accuracy of the remark.

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020                   Page 14 of 23
       petition.” Br. of Appellant at 13. Layla also directs us to Trial Rule 11 and

       asserts that Ciobanu Law should be held jointly and severally liable because the

       Heirship Petition was “groundless” and “taken primarily for the purpose of

       harassing or maliciously injuring Layla Mihuti.” Id. at 16.


[34]   As we have identified legal merit, we conclude that the trial court did not abuse

       its discretion by declining to shift the responsibility for the disputed fees.


                                                 Conversion
                                            Default Judgment
[35]   Layla alleged that Ovidiu converted property while serving as the personal

       representative and was therefore liable under Indiana Code Section 29-1-16-1.

       When Ovidiu failed to personally attend a hearing on that claim of conversion,

       the trial court entered a default judgment against him on the issue of liability.

       The trial court later denied Ovidiu’s motion to set aside the default judgment.


[36]   “[T]he proper procedure . . . for setting aside an entry of default or grant of

       default judgment thereon is to first file a Rule 60(B) motion to have the default

       or default judgment set aside.” Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332,

       337 (Ind. 1983). “Trial Rule 60(B) motions address only the procedural,

       equitable grounds justifying relief from the legal finality of a final judgment, not

       the legal merits of the judgment.” In re Paternity of P.S.S., 934 N.E.2d 737, 740

       (Ind. 2010) (quoting Mid-W. Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129

       (Ind. Ct. App. 1991)). In pertinent part, Trial Rule 60(B) provides as follows:



       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 15 of 23
        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;


                 (2)     any ground for a motion to correct error, including
                         without limitation newly discovered evidence,
                         which by due diligence could not have been
                         discovered in time to move for a motion to correct
                         error[] under Rule 59;


                 (3)     fraud (whether heretofore denominated intrinsic or
                         extrinsic), misrepresentation, or other misconduct of
                         an adverse party;


                 (4)     entry of default or judgment by default was entered
                         against such party who was served only by
                         publication and who was without actual knowledge
                         of the action and judgment, order or proceedings;


                 (5)     except in the case of a divorce decree, the record
                         fails to show that such party was represented by a
                         guardian or other representative . . . ;


                 (6)     the judgment is void;


                 (7)     the judgment has been satisfied, released, or
                         discharged, or a prior judgment upon which it is
                         based has been reversed or otherwise vacated, or it
                         is no longer equitable that the judgment should have
                         prospective application; or




Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 16 of 23
                        (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).


[37]   “A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a

       meritorious claim or defense,” T.R. 60(B)—i.e., a showing that vacating the

       judgment will not be an empty exercise. Outback Steakhouse of Fla., Inc. v.

       Markley, 856 N.E.2d 65, 73 (Ind. 2006). “One way to meet this requirement is

       to identify evidence that, if credited, demonstrates that a different result would

       be reached if the case were retried on the merits.” Id. at 81. “A ‘meritorious

       defense’ is also established by showing that the judgment was ‘unfairly

       procured.’” Id. (quoting Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994)).


[38]   In ruling on a Trial Rule 60(B) motion, the trial court should exercise its

       discretion “in light of the disfavor in which default judgments are held.” Allstate

       Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind. 2001). Indeed, “Indiana law

       strongly prefers disposition of cases on their merits.” Coslett v. Weddle Bros.

       Const. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003). “Any doubt of the propriety

       of a default judgment should be resolved in favor of the defaulted party.” Id.


[39]   Here, Ovidiu sought relief by focusing on Trial Rule 55. This rule permits entry

       of default “[w]hen a party against whom a judgment for affirmative relief is

       sought has failed to plead or otherwise comply with these rules and that fact is

       made to appear by affidavit or otherwise . . . .” T.R. 55(A). Rule 55(B)

       requires notice and a hearing prior to entry of default. Moreover, Rule 55(C)



       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 17 of 23
       states that “[a] judgment by default which has been entered may be set aside by

       the court for the grounds and in accordance with the provisions of Rule 60(B).”


[40]   In moving to set aside the default judgment, Ovidiu alleged that he was not

       afforded notice under Trial Rule 55. Ovidiu asserted that, had he been

       provided notice of potential default, “perhaps he could have made other

       arrangements” to attend the hearing. Motion to Correct Error & Set Aside

       Default at 4, In re Estate of Mihuti, No. 32D05-1512-ES-256 (Mar. 4, 2019).4


[41]   Layla does not dispute a lack of notice. She instead argues that Trial Rule 55

       “was not the trial court’s basis for entry of default.” Reply Br. of Appellant at

       7. Layla contends that the court exercised its “inherent authority to sanction

       improper or abusive conduct.” Id. She asserts that Ovidiu—a critical witness

       for the claim of conversion—failed to personally attend the hearing, despite a

       subpoena and a separate court order requiring Ovidiu to personally attend.


[42]   In any case, regardless of whether the default judgment arose through Trial

       Rule 55 or through the inherent power of the court, Ovidiu failed to allege a

       meritorious defense. He makes no attempt to deny the allegations. Moreover,

       as to any question of due process, we discern nothing procedurally unfair about




       4
        The motion is not in the appendices. We located the document through the Odyssey case-management
       system. See Ind. Appellate Rule 27 (“The Record on Appeal shall consist of the Clerk’s Record and all
       proceedings before the trial court . . . , whether or not transcribed or transmitted to the Court on Appeal.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020                     Page 18 of 23
       maintaining the entry of default where Ovidiu alleged only that, with notice,

       “perhaps” he would have arranged to attend a hearing on the matter.


[43]   “[N]either the judicial system nor society are served by performing essentially

       meaningless acts which only serve to delay other litigants in having their day in

       court.” Teegardin v. Maver’s, Inc., 622 N.E.2d 530, 533 (Ind. Ct. App. 1993).

       Further, technical noncompliance with the notice requirements of Trial Rule

       55(B)—standing alone—is not a sufficient basis to set aside a judgment. See id.


[44]   We discern no abuse of discretion in the treatment of the Rule 60(B) motion.


                                                   Damages
[45]   “The computation of damages is strictly a matter within the trial court’s

       discretion.” Romine v. Gagle, 782 N.E.2d 369, 382 (Ind. Ct. App. 2003) (quoting

       Gasway v. Lalen, 526 N.E.2d 1199, 1203 (Ind. Ct. App. 1988)), trans. denied.

       “No degree of mathematical certainty is required in awarding damages as long

       as the amount awarded is supported by evidence in the record.” Hodges v.

       Swafford, 863 N.E.2d 881, 891 (Ind. Ct. App. 2007). Yet, “an award may not be

       based upon mere conjecture or speculation.” Id. “To support an award of

       compensatory damages, facts must exist and be shown by the evidence which

       afford a legal basis for measuring the plaintiff’s loss.” Gasway, 526 N.E.2d at

       1203. To that end, “the damages must be referenced to some fairly definitive

       standard, such as market value, established experience, or direct inference from

       known circumstances.” Roy Bayer Tr. v. Red Husky, LLC, 13 N.E.3d 415, 419

       (Ind. Ct. App. 2014) (quoting Romine, 782 N.E.2d at 382)). We “will not

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 19 of 23
       disturb an award for damages when the amount is within the bounds of the

       probative evidence . . . .” Beyer v. State, 280 N.E.2d 604, 610 (Ind. 1972).


                                                     Evidence

[46]   At the damages hearing, the court admitted certain deposition testimony over

       Ovidiu’s objection. Ovidiu briefly argues that admitting the evidence was an

       abuse of discretion. He claims that the challenged testimony was prejudicial

       because Layla cannot otherwise demonstrate that Ovidiu removed items from

       the house. At bottom, however, this argument is directed toward liability,

       which was established through the default judgment—not through the evidence.

       In any case, there was cumulative evidence that Ovidiu took photographs inside

       the house and that, on a later date, photographed items were no longer in the

       house. Thus, even if we assume error, we are not persuaded of any prejudice.

       See Ind. App. R. 66(A) (directing this Court to disregard harmless error).


[47]   Ovidiu also argues that the evidence supporting the damages award is

       impermissibly speculative. Much of the evidence consists of printed webpages

       that Layla found, which display purchase prices for similar property. Ovidiu

       contends that Layla lacked “training or experience in valuation or determining

       fair market value” and that insufficient evidence supports a damages award

       when the evidence is derived from “a few Google searches” by a non-expert.

       Appellee Br. of Ovidiu at 20. According to Ovidiu, the court “should not have

       based its damages calculation by allowing Layla to look at a picture, perform a

       Google search for a like item, and speculate as to the item’s current value.” Id.

       However, in light of the pervasiveness of e-commerce, we are not persuaded
       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 20 of 23
       that this type of evidence is insufficient to support a damages award. Moreover,

       to the extent that Ovidiu characterizes other evidence as guesswork, having

       reviewed the matter, we conclude that sufficient evidence supports the award.


                                                    Valuation

[48]   Layla argues that she is entitled to damages for a Versace bracelet and a gold

       watch. Layla sought $10,000 for the bracelet and $3,000 for the watch—and

       the court rejected these amounts. Layla essentially argues that the court was

       obligated to accept her valuations. Pointing out that Ovidiu did not offer

       alternative values, Layla asserts that rejecting her evidence and awarding no

       value “flies in the face of fact and logic, and amounts to error as a matter of

       law.” Br. of Appellant at 17. However, contrary to Layla’s suggestion, a court

       is not bound to accept the proffered value of a chattel. See, e.g., TRW Vehicle

       Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 221 (Ind. 2010) (“[T]he amount of

       damages is governed by the evidence, not by the amount requested.”). Here, it

       seems the court concluded that Layla did not meet her burden of providing

       reliable, credible evidence to support damages for these items—and it is not our

       role to reweigh evidence. Thus, we are not persuaded of an abuse of discretion.


                                                 Categorization

[49]   In general, household goods (1) acquired during marriage and (2) in possession

       of both spouses become the sole property of the surviving spouse. I.C. § 32-17-

       11-29. As our legislature has not defined household goods in this context, this

       Court eventually adopted the following definition: “those articles with which a


       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 21 of 23
       residence is equipped, other than fixtures, designed in their manufacture as

       instruments of the household, and embrace the articles necessary, convenient,

       or ornamental, requisite to enable [a person] not merely to live, but to live in a

       convenient and comfortable manner.” In re Estate of Roberts, 27 N.E.3d 1136,

       1140 (Ind. Ct. App. 2015) (quoting Kramer v. Beebe, 115 N.E. 83, 85-86 (Ind.

       1917)). “Whether an item or group of items of personal property qualifies as a

       household good should be determined on a case-by-case basis.” Id.


[50]   At the damages hearing, Layla testified that Bogdan “had a large collection of

       watches.” Tr. Vol. 3 at 129. She sought to recover the value of several watches

       and watch winders, which the trial court valued at $10,890. The court awarded

       the value of those items to the estate—not to Layla—“conclud[ing] that the

       watches possessed by the decedent at the time of his death were not ‘household

       goods’ and are therefore property of the estate.” Appellant’s App. Vol. II at 61.

       The court cited Roberts, in which this Court concluded that a $500,000 gun

       collection did not constitute household goods where the collection—stored in

       the basement—“went unused, untouched, and even unseen by the [spouses].”

       Roberts, 27 N.E.3d at 1141. The Roberts Court noted that it did “not mean to

       suggest . . . that guns or collections of other items may not be household goods”

       but that the “specifics” of the collection made it “such that it falls outside the

       definition of household goods” that this Court has adopted in this context. Id.


[51]   Layla asserts that “while the decedent’s watches were of a not insignificant

       value, they were not so far in excess of the ordinary value of a man’s personal

       jewelry as to make them anything other than household goods.” Br. of

       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 22 of 23
       Appellant at 16. This argument assumes that jewelry falls within the definition

       of household goods, but Layla cites no support for that proposition. Applying

       the definition of household goods set forth above—which the court applied in

       Roberts—we cannot say that a residence is “equipped” with jewelry such that

       the jewelry is an “instrument[] of the household.” Roberts, 27 N.E.3d at 1140

       (quoting Kramer, 115 N.E. at 85-86). Thus, Layla has not demonstrated that

       the court abused its discretion in its categorization of the watch-related items.



                                                Conclusion
[52]   To the extent there was error in allowing Ruh and Coffin to recover fees, any

       error was de minimis. Moreover, the trial court did not abuse its discretion in

       allowing Ciobanu Law to recover its fees, and it did not abuse its discretion in

       declining to order Ovidiu and Ciobanu Law responsible for all fees incurred in

       this matter. Turning to the default judgment on liability for conversion,

       because Ovidiu did not allege a meritorious defense, the court did not err in

       declining to set aside the judgment. As to the damages hearing, we are not

       persuaded of reversible error in the admission of evidence, and we discern no

       abuse of discretion concerning the challenged aspects of the damages award.


[53]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-ES-1945 | April 16, 2020   Page 23 of 23
