      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Nov 30 2017, 8:19 am
      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      John D. Bodine                                          Jeffrey A. Boyll
      Sullivan, Indiana                                       Wilkinson, Goeller, Modesitt,
                                                              Wilkinson & Drummy, LLP
                                                              Terre Haute, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Nicole L. Brown,                                        November 30, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              77A01-1703-PL-676
              v.                                              Appeal from the Sullivan Superior
      Tammy S. Brown,                                         Court

      Appellee-Plaintiff.                                     The Honorable Lakshmi Y.
                                                              Reddy, Special Judge
                                                              Trial Court Cause No.
                                                              77D01-1011-PL-446



      Mathias, Judge.

[1]   Nicole Brown (“Nicole”) appeals a jury verdict against Terry Brown (“Terry”)

      and her and in favor of Tammy Brown (“Tammy”) in the amount of $75,000.




      Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017          Page 1 of 9
      Nicole argues that Tammy failed to offer sufficient evidence to support an

      award of monetary damages against her. Terry does not appeal.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The facts most favorable to the verdict reveal that Tammy and Terry Brown

      (“Terry”) were married in 1992. In 2002, they were divorced; however, Tammy

      moved back in with Terry four months later. They lived together until 2010, but

      never remarried. A coal company purchased Tammy and Terry’s home in

      December 2007, and Terry used part of the proceeds to purchase nineteen and

      one-half acres of land in Sullivan county. A warranty deed was signed and

      notarized in 2008 deeding the property to Terry and Tammy as husband and

      wife, although they were not married at the time. Over the next several months,

      Terry and employees from his construction company built a home on the

      property (“the Real Estate”)1where Tammy and Terry moved in January 2010.


[4]   In September 2010, Tammy and Terry were involved in an altercation. Tammy

      testified that while they were having sexual intercourse, Terry accused her of

      sleeping with another man. Tammy explained, “I was on top and he just went

      like this and just throwed (sic) me like that and I landed on the nightstand.” Tr.




      1
          The Real Estate was appraised for $140,000. Ex. Vol., Plaintiff’s Ex. 7.




      Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017   Page 2 of 9
      Vol. II, p. 111. As a result, Tammy suffered injuries to her left breast implant,

      and after three to four days it was completely flat.2


[5]   On October 12, 2010, Terry executed a quitclaim deed that transferred the Real

      Estate from Terry and Tammy to Terry only. Although the deed contained

      Tammy’s signature, she testified at trial that she never signed the document and

      that Terry forged her signature.3 Fifteen days later, Terry and Tammy got into a

      heated argument, and Terry called the police to have officers remove Tammy

      from the home. Sullivan County Sherriff’s Department Officer Jason Bobbitt

      (“Officer Bobbitt”) arrived, and Terry showed him the quitclaim deed that

      indicated the Real Estate was in Terry’s name only. As a result, Officer Bobbitt

      forced Tammy to leave.


[6]   In December 2010, Tammy filed a complaint against Terry alleging (1) that

      Terry committed forgery and fraud by signing Tammy’s name on the quitclaim

      deed, and (2) that Tammy suffered damages from the September incident when

      her left breast implant was ruptured. A trial was held in February 2012, and the

      jury returned a verdict on February 28 against Terry for $80,000. Three days

      later, Terry executed a quitclaim deed assigning his interest in the Real Estate to




      2
          Tammy’s implant was repaired five years later for $5,000. Tr. Vol. II, pp. 116–17.
      3
       At trial Terry denied forging Tammy’s signature and testified that Tammy willingly signed the deed. Tr.
      Vol. III, p. 23. However, he did admit to falsifying the notarization on the deed, an act for which he was
      charged with and pleaded guilty to criminal deception. Id. at 39.




      Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017            Page 3 of 9
      Nicole Myers (“Nicole”). Nicole is Tammy’s former daughter-in-law,4 and at

      the time of the property transfer, she was dating Terry.5


[7]   Terry appealed the judgment against him, and in December 2012 a panel of this

      court reversed the trial court and remanded. Brown v. Brown, 979 N.E.2d 684

      (Ind. Ct. App. 2012).6 Tammy then filed a second complaint on April 5, 2016.

      The first two counts were the same as in the original complaint; however,

      Tammy added a third count for fraudulent transfer of the Real Estate from

      Terry to Nicole. Under count III, Tammy requested that the fraudulent transfer

      be set aside.


[8]   A two-day jury trial commenced on February 27, 2017. On two separate

      occasions during trial, counsel for both parties and the court grappled with a

      jury instruction that would have given the jury the ability to set aside the

      transfer of Real Estate from Terry to Nicole. The instruction was not given, and

      the trial court remarked that relief under count III was to be determined “post-

      verdict.”7 Tr. Vol. III, p. 82. The verdict forms agreed to by counsel and the

      court, and submitted to the jury, referenced only an awarded dollar amount.

      The jury returned a general verdict stating, “We the jury decide in favor of the



      4
          Nicole and Tammy’s son Donald divorced on October 20, 2010.
      5
          Terry and Nicole married on March 26, 2012.
      6
        This court reversed because evidence of Terry’s prior convictions was improperly introduced at trial, and
      the admission was more prejudicial than probative. Brown v. Brown, 979 N.E.2d 684, 687 (Ind. Ct. App.
      2012).
      7
       Because Sullivan County does not use the Odyssey case management system, this court is unable to
      determine from mycase.in.gov whether a post-verdict proceeding was ever held.




      Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017            Page 4 of 9
       Plaintiff Tammy S. Brown and against the Defendant Terry L. Brown and

       Nicole L. Brown and decide plaintiff[’]s damages are $75,000.” Id. at 120.

       Nicole now appeals.


                                      Discussion and Decision
[9]    On appeal, a general verdict will be sustained upon any theory consistent with

       the evidence presented. Tipmont Rural Elec. Membership Corp. v. Fischer, 697

       N.E.2d 83, 86 (Ind. Ct. App. 1998), aff’d, 716 N.E.2d 357 (Ind. 1999) (emphasis

       added). We do not reweigh evidence or judge the credibility of witnesses, and

       we consider only the evidence most favorable to the judgment along with all

       reasonable inferences to be drawn therefrom. Id. “Only where there is a total

       failure of evidence or where the jury's verdict is contrary to the uncontradicted

       evidence will it be reversed.” Id. at 86–87. When the jury issues a general

       verdict, it is presumed that all facts essential to recovery have been found in

       favor of the plaintiff. Warren Const. Co. v. Powell, 173 Ind. 207, 89 N.E. 857, 859

       (1909).


[10]   Nicole contends that Tammy “failed to offer any evidence whatsoever that

       would support, or in any way justify, an award of monetary damages in her

       favor and against Nicole.” Appellant’s Br. at 15. We disagree.


[11]   During trial, Tammy presented evidence that established the value of the Real

       Estate and the cost to repair her breast implant. Tammy offered, and the trial

       court admitted, a detailed appraisal of the Real Estate indicating a final estimate

       value of $140,000. Ex. Vol., Plaintiff’s Ex. 7. Additionally, Tammy provided an



       Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017   Page 5 of 9
       estimate of surgical fees to repair and replace her breast implants for $6,210.8

       Ex. Vol., Plaintiff’s Ex. 11. Tammy then testified that she had them repaired

       elsewhere for $5,000. Tr. Vol. II, p. 116. All of this evidence was available to

       the jury as it deliberated.


[12]   However, the jury was given only two verdict forms: one finding in favor of

       Tammy, and one finding in favor of Terry and Nicole. Appellee’s App. pp. 43–

       44. The verdict form in favor of Tammy indicated relief against both Terry and

       Nicole, and it provided a blank line for the jury to write in an amount for

       damages. Id. at 43. Counsel for both parties discussed the verdict forms prior to

       completion of the evidence at trial, and Nicole’s counsel indicated, “I’m fine

       with both of those.” Tr. Vol. II, p. 178.


[13]   Nicole was named as a defendant only in count III because of the fraudulent

       transfer of the Real Estate into her name. On several occasions during trial, the

       court and counsel for both parties grappled with the question of whether to

       provide the jury with the following instruction:


                If you find that the defendant Terry L. Brown transferred his
                interest in the real estate at issue to his wife Nicole L. Brown (1)
                with actual intent to hinder or delay the claims of the plaintiff; (2)
                without receiving a reasonably equivalent value in exchange
                for the transfer; and (3) believed or reasonably should have




       8
        This estimate is for the removal and replacement of both breast implants. Tammy explained at trial that
       both had to be done because she had previously had saline implants, and was now putting in silicone. Tr.
       Vol. II, p. 117.Tammy indicated that there could not be one implant with saline and one with silicone. Id.




       Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017           Page 6 of 9
        believed that the plaintiff would obtain judgment against him in
        this action you may disregard the transfer to Nicole L. Brown.


Appellee’s Br. at 11. After the completion of evidence, both parties and the

court had the following exchange relating to the proposed jury instruction and

the verdict forms:


        [The Court]:                      We’ve approved a jury form for the
                                          Plaintiff, or a verdict form for the
                                          Plaintiff and the verdict form that was
                                          approved by counsel and accepted by
                                          the Court, references only an awarded
                                          dollar damage and that’s what we
                                          agreed to. That’s what counsel agreed
                                          to, that’s what I agreed to and that’s
                                          what needs to go to the jury.

        [Tammy’s Counsel]:                And I suppose that brings us back to
                                          your original thought that this issue is
                                          a post-verdict issue.

        [The Court]:                      Well the relief, the relief is a post-
                                          verdict.

                                                             ***

        [Nicole’s Counsel]:               If this instruction is not given and we
                                          submit the verdict form to the jury as
                                          we approved, I’m willing to do that.

        [Tammy’s Counsel]:                The verdict form for the Plaintiff?

        [Nicole’s Counsel]:               Yes the verdict for the Plaintiff.

        [Tammy’s Counsel]:                Okay, I think that’s a reasonable
                                          compromise (inaudible) this
                                          instruction as a post-verdict matter,
                                          okay? I’m okay with that.




Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017   Page 7 of 9
                                                                    ***

               [The Court]:                      Hypothetically you know I’m just
                                                 saying hypothetically if there is a
                                                 judgment in favor of Plaintiff.

               [Nicole’s Counsel]:               Ya and I’m really concerned at this
                                                 juncture about submitting something
                                                 to the jury that we’re having this much
                                                 of an argument about at this point in
                                                 time but I think that may be a
                                                 reasonable compromise.

               [Tammy’s Counsel]:                Yep I agree.

               [The Court]:                      Let’s just leave this 9 out and you want
                                                 to withdraw or you want the Court to,
                                                 how do you want to?

               [Tammy’s Counsel]:                I’ll withdraw it.

               [The Court]:                      Now [Nicole’s Counsel] assuming
                                                 there’s a Plaintiffs verdict, what’s
                                                 going to happen to that property?

               [Nicole’s Counsel]:               I kind of think that’s my clients’
                                                 problem, I think if there’s a Plaintiffs
                                                 verdict that they are going to have to
                                                 go ahead and execute on the judgment-

               [The Court]:                      Alright.

               [Nicole’s Counsel]:               And then that’s going to be my guys’
                                                 problem and their problem.

       Tr. Vol. III, pp. 82–84.


[14]   By rendering a verdict in Tammy’s favor, the jury implicitly found that Terry

       committed forgery and fraud when he transferred the Real Estate into his name

       only, that Terry’s actions directly caused Tammy’s injuries to her left breast,

       and that Terry fraudulently transferred the Real Estate from his name into



       Court of Appeals of Indiana | Memorandum Decision 77A01-1703-PL-676 | November 30, 2017   Page 8 of 9
       Nicole’s. As a result, the jury could reasonably find that Nicole currently holds

       a significant property interest that was fraudulently transferred.


[15]   In addition, the jury was never provided with a verdict form differentiating

       between defendants or separating by counts, and counsel decided to withdraw a

       jury instruction that would have provided the jury with the opportunity to set

       aside the fraudulent transfer. Even more importantly, Nicole’s counsel never

       objected to the verdict forms provided to the jury. See Murphy Auto Sales, Inc. v.

       Coomer, 123 Ind. App. 709, 112 N.E.2d 589, 594 (1953) (holding that a general

       jury verdict was sustained by sufficient evidence—even though appellees could

       not both be liable under first paragraph of the complaint—where no objection

       was made to the verdict forms given to the jury and no other forms were

       offered.)


[16]   The jury’s damage award against Terry and Nicole is supported by the evidence

       admitted at trial of the Real Estate’s value and the cost to repair Tammy’s

       breast implant; and it is consistent with the agreed verdict form given to the

       jury. Accordingly, we find that the jury performed its duty with the tools it was

       provided, and its decision was consistent with the evidence presented at trial.

[17]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




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