MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jan 31 2019, 5:56 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.


ATTORNEYS FOR APPELLANT1                                     ATTORNEYS FOR APPELLEES
William N. Ivers                                             Clinton E. Blanck
Stephen J. Peters                                            Clifford T. Rubenstein
David I. Rubin                                               Blanck & Rubenstein, P.C.
Plunkett Cooney, P.C.                                        Carmel, Indiana
Indianapolis, Indiana


                                              IN THE
       COURT OF APPEALS OF INDIANA

Theresa Dukes,                                               January 31, 2019
Appellant-Defendant/Counterclaimant,                         Court of Appeals Case No.
                                                             18A-PL-656
           v.                                                Appeal from the Marion Superior
                                                             Court
Richard T. Mohr,                                             The Honorable Timothy W.
Appellee-Plaintiff/Counter-defendant,                        Oakes, Judge
                                                             Trial Court Cause No.
and                                                          49D02-1709-PL-34211
John R. Mohr,
Appellee-Third-Party Defendant,




1
    On January 31, 2019, this Court granted the motions of Mr. Ivers, Mr. Peters, and Mr. Rubin to withdraw.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019                        Page 1 of 10
      Mathias, Judge.


[1]   The Marion Superior Court issued an order granting prejudgment possession of

      a property to Richard Mohr that Mohr owns and Theresa Dukes (“Dukes”)

      leases. Dukes appeals and argues that the trial court’s order does not meet the

      express requirements of the Ejectment Statute, and that the trial court

      improperly calculated the bond amount she was required to post to maintain

      possession of the property.

[2]   We affirm the trial court’s order, but remand with instructions to recalculate

      Dukes’s bond.


                                     Facts and Procedural History
[3]   In November 2014, Dukes began renting a duplex in Indianapolis from Richard

      Mohr. John Mohr, Richard’s father, acted as Richard’s agent for the purpose of

      leasing the property.2 Dukes expressed interest in eventually purchasing the

      property. Therefore, pursuant to the terms of the lease agreement, Mohr agreed

      to give Dukes a “right of first refusal” to purchase the property if Mohr received

      an offer to purchase from another party. Appellant’s App. p. 30.

[4]   Dukes and Mohr entered into four extensions of the initial lease. The lease

      addendums included the terms governing Dukes’s right of first refusal. On June

      21, 2017, approximately forty days before expiration of the fourth lease




      2
          Richard and John are referred to collectively throughout this opinion as Mohr.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019      Page 2 of 10
      extension, Mohr sent Dukes a letter stating their intention to sell the property.

      Mohr informed Dukes that she could purchase the property for $82,000. Dukes

      did not believe the property was worth that amount based on the sale of the

      adjoining duplex and certain existing defects. Therefore, she did not accept

      Mohr’s offer to sell the property to her for $82,000.


[5]   Dukes refused to vacate the property on July 31, 2017, the date the fourth lease

      extension ended. Approximately five days later, Mohr filed eviction

      proceedings in small claims court. Dukes appealed the small claims judgment

      against her, and the Marion Superior Court assumed jurisdiction over the case.

      On September 29, 2017, Mohr filed a “Verified Replead Complaint” against

      Dukes requesting immediate possession of the premises and damages. In her

      answer and counterclaim, Dukes alleged that she was not served with notice of

      the eviction proceedings filed in small claims court. Dukes also requested

      damages, possession of the property, and argued that Mohr breached his

      agreement to sell the property to her.

[6]   Mohr filed a request for prejudgment possession of the property, and the trial

      court held a hearing on the motion on February 20, 2018. The trial court

      granted Mohr’s motion and determined that he would be required to post a

      bond in the amount of $5,000. One week later, the trial court issued the

      following order:


              1. Having considered the pleadings, evidence, and testimony
              presented by all parties present, the Court determines with
              reasonable probability that Plaintiff Richard T. Mohr

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 3 of 10
        (“Landlord”), is entitled to pre-judgment possession, use, and
        enjoyment of the property located at 1307 Norfolk Circle,
        Indianapolis, IN 46224 (“Leased Premises”).


        2. Therefore, on or before March 18, 2018 at 5:00 p.m., Tenant,
        or any such person claiming under or through Tenant, in
        possession of Leased Premises, shall PEACEABLY
        SURRENDER to Landlord and VACATE the Leased Premises
        as described and set forth in the Lease Agreement attached to the
        Complaint and hereby incorporated by reference herein, . . .


                                                 ***


        5. Before the Landlord may recover possession, pursuant to I.C.
        32-30-3-6, the Landlord shall file with this Court a written
        undertaking in the amount of Five Thousand Dollars ($5,000.00),
        executed by a surety approved by the Court.


        6. Pursuant to I.C. 32-30-3-7, once the Landlord files his written
        undertaking, Tenant shall have the right (a) to except to the
        Landlord’s surety, or (b) to file a written undertaking for the
        repossession of the Leased Premises.


                                       [Choose 7A or 7B]


        7A. Pursuant to I.C. 32-30-3-8, in order to maintain possession of
        the Leased Premises, after the Landlord files his undertaking,
        Tenant may file with the Court her written undertaking signed by
        a surety approved by the Court in the amount of $29,750.00,
        which amount is determined by the Court that is sufficient to
        assure the payment of costs assessed against the Tenant for the
        wrongful detention of the Leased Premises. Such undertaking
        shall be filed with the Court on or before March 18, 2018 at 5:00
        p.m. Such amount has been determined by the Court as the total

Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 4 of 10
        of (a) past due rent from August 2017–February 2018, (b)
        continuing rent from March 1, 2018 through the end of this case,
        which will be tried by a jury trial, (c) Landlord’s attorney fees
        through the date of this Order, (d) Landlord’s attorney fees
        through the end of this case, (e) late fees and (f) real estate taxes,
        insurance and repair expenses through the end of this case . . .


        7B. Pursuant to I.C. 32-30-3-8, in order to maintain possession of
        the Leased Premises, after the Landlord files his undertaking,
        Tenant may file with the Court her written undertaking signed by
        a surety approved by the Court in the amount of $15,000.00,
        which amount is determined by the Court that is sufficient to
        assure the payment of costs assessed against the Tenant for the
        wrongful detention of the Leased Premises. Such undertaking
        shall be filed with the Court on or before March 18, 2018 at 5:00
        p.m. Such amount has been determined by the Court as a total of
        (a) past due rent from August 2017–February 2018, (b)
        Landlord’s attorney fees through the date of this Order, (c)
        Landlord’s attorney fees through the end of this case. . . . In
        addition to filing the written undertaking in the amount of
        $15,000.00, until a final judgment of this Court on possession,
        the lease shall continue pursuant to Paragraph 21 of the lease
        which provides that as a holdover tenant, the lease shall be
        extended on a month-to-month basis under the same terms in the
        lease except that Tenant’s monthly rent shall be $825.00 per
        month. Beginning March 1, 2018 and continuing on the first day
        of each month thereafter until a final Court decision[], Tenant
        shall pay to Landlord the monthly rent of $825.00 in accordance
        with the terms of the lease.

Appellant’s App. pp. 11–13. Dukes now appeals.3




3
 On Mohr’s motion, the trial court suspended the March 18, 2018 deadline for Dukes to surrender and
vacate the leased premises “until further order of the Court.” Appellant’s App. pp. 164–65.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019              Page 5 of 10
                                       The Ejectment Statute

[7]   Dukes argues that the trial court erred when it granted Mohr prejudgment

      possession of the property before requiring him to post a “proper bond.”

      Appellant’s Br. at 14–15. Mohr agrees that the trial court’s order “lays out a

      sequence of events different from that suggested by the Ejectment Statute,” but

      the court’s order does not award him immediate possession of the property

      without posting a bond. Appellees’ Br. at 8. Therefore, Mohr argues that Dukes

      was not prejudiced by the trial court’s failure to follow the precise language of

      the ejectment statute.


[8]   “Ejectment is an action to restore possession of property to the person entitled

      to it.” Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008) (citing BLACK’S

      LAW DICTIONARY 516 (6th ed. 1990)). The trial court may issue a

      prejudgment order of possession after holding a hearing, considering the

      pleadings, evidence, and testimony presented at the hearing, and determining

      “with reasonable probability which party is entitled to possession, use, and

      enjoyment of the property.” Ind. Code § 32-30-3-5(a). However,


              A court may not issue an order of possession in favor of a
              plaintiff other than an order of final judgment until the plaintiff
              has filed with the court a written undertaking in an amount fixed
              by the court and executed by a surety to be approved by the court
              binding the plaintiff to the defendant in an amount sufficient to
              assure the payment of any damages the defendant may suffer if
              the court wrongfully ordered possession of the property to the
              plaintiff.


      Ind. Code § 32-30-3-6.
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 6 of 10
[9]    The next section establishes the contents of the order of possession for the

       property at issue. Specifically, section 32-30-3-7 provides:

               The court shall direct the order of possession to the sheriff or
               other officer charged with executing the order and within whose
               jurisdiction the property is located. The order of possession must:

               (1) describe the property;

               (2) direct the executing officer to:

                        (A) seize possession of the property unless the court issued
                        the order without notice to the parties; and

                        (B) if the defendant has not filed a written undertaking as
                        provided in section 8 of this chapter, put the plaintiff in
                        possession of the property by removing the defendant and
                        the defendant’s personal property from the property;

               (3) have attached a copy of any written undertaking filed by the
               plaintiff under section 6 of this chapter; and

               (4) inform the defendant of the right to except to the surety upon
               the plaintiff’s undertaking or to file a written undertaking for the
               repossession of the property as provided in section 8 of this
               chapter.

[10]   Finally, section 8 provides a mechanism for the defendant to maintain or return

       to possession of the property.


               (a) Before the hearing on the order to show cause or before final
               judgment, and within the time fixed in the order of possession,
               the defendant may require the return of possession of the
               property by filing with the court a written undertaking executed
               by a surety to be approved by the court stating that the defendant
               is bound in an amount determined by the court sufficient to


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 7 of 10
               assure the payment of costs assessed against the defendant for the
               wrongful detention of the property.

               (b) If a defendant files an undertaking under this section, the
               defendant shall:

                        (1) serve a notice of filing the undertaking on the executing
                        officer and the plaintiff or the plaintiff’s attorney; and

                        (2) file with the court proof of service of the notice of filing
                        the undertaking.

               (c) If a defendant files an undertaking before the hearing on the
               order to show cause, the court shall terminate the hearing unless
               the plaintiff takes exception to the surety.

               (d) If the property is in the possession of the executing officer
               when the defendant files the undertaking, the court shall return
               possession of the property to the defendant not more than five (5)
               days after service of notice of the filing of the undertaking on the
               plaintiff or the plaintiff’s attorney.

       Ind. Code § 32-30-3-8.

[11]   The trial court’s order awarded possession to Mohr before he had posted the

       bond contrary to Indiana Code section 32-30-3-6. However, pursuant to

       paragraph number 5 of the trial court’s order, Mohr was required to post a

       proper bond before he was entitled to prejudgment possession of the property.

       Appellant’s App. p. 12. Therefore, Mohr was required to file his bond before

       they could claim possession of the property on March 18, 2018.


[12]   Dukes contends that allowing the trial court to award possession to the plaintiff

       before he or she posts the appropriate bond “could effectively circumvent the

       other protections of the Ejectment Statute, which favor continued possession by


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 8 of 10
       the defendant.” Reply Br. at 8. However, Dukes does not claim that she was

       specifically harmed by the trial court’s failure to require Mohr to post a bond

       before awarding prejudgment possession of the property to them. And Dukes

       was provided with the opportunity to object to and present evidence opposing

       Mohr’s request for prejudgment possession of the property. For these reasons,

       we agree with Mohr that “the protections of the statute are still present and the

       end result” occurred as prescribed by the Ejectment Statute. See Appellees’ Br.

       at 8.


                                        Calculation of the Bond

[13]   Dukes also argues that the trial court erred when it calculated her bond amount,

       and Mohr agrees that the calculation is incorrect.4 The trial court’s calculation

       of Dukes’s bond amount included Mohr’s damages in the event that the court

       ultimately determines that Dukes was in wrongful possession of the property.

       However, Indiana Code section 32-30-3-8 provides that the defendant’s bond is

       an “amount determined by the court sufficient to assure the payment of costs

       assessed against the defendant for the wrongful detention of the property.”

       (Emphasis added). The statute does not include the plaintiff’s damages in the

       calculation of the defendant’s bond amount.




       4
        Dukes also complains that the trial court improperly calculated Mohr’s bond amount, but she does not
       support her claim with cogent argument, and therefore, the issue is waived. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019                  Page 9 of 10
[14]   Mohr agrees that Dukes was ordered to pay one of two bond amounts, i.e.

       either $29,750.00 or $15,000.00, that “are more akin to damages suffered” than

       an amount sufficient to assure the payment of costs. See Appellees’ Br. at 9; I.C.

       § 32-30-3-8. Mohr concurs that the trial court considered potential damages

       suffered including attorney fees when it set Dukes’s alternative bond amounts.

       Appellant’s App. pp. 12–13; see also R.L. Turner Corp. v. Town of Brownsburg, 963

       N.E.2d 453, 458 (Ind. 2012) (explaining that “costs” is a term of art that does

       not include attorney fees). We therefore remand this case to the trial court with

       instructions to determine a proper bond amount under Indiana Code section

       32-30-3-8 that Dukes must post to remain in possession of the property.


                                                 Conclusion
[15]   Although the trial court failed to follow the precise statutory framework of the

       Ejectment Statute when it issued the order in this case, Dukes was not harmed

       by the court’s order awarding prejudgment possession to Mohr before he posted

       bond. However, the trial court erred in its calculation of the bond amount

       Dukes must post to retain possession of the property. We therefore remand this

       case to the trial court for a proper calculation of Dukes bond under Indiana

       Code section 32-30-3-8.


[16]   Affirmed and remanded in part for proceedings not inconsistent with this

       opinion.


       Bailey, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019   Page 10 of 10
