 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing                Jun 28 2013, 7:14 am
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:

DAVID S. PEEBLES
Harris, Harvey, Peebles & Thompson, LLC
Crawfordsville, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN P. SCHAUB,                                    )
                                                   )
       Appellant,                                  )
                                                   )
               vs.                                 )      No. 54A01-1301-PL-11
                                                   )
THE ESTATE OF EDWARD G. SCHAUB and                 )
DAVID SCHAUB, Personal Representative,             )
                                                   )
       Appellees.                                  )


                 APPEAL FROM THE MONTGOMERY SUPERIOR COURT
                         The Honorable Peggy Q. Lohorn, Judge
                            Cause No. 54D02-1105-PL-436


                                          June 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       John P. and David Schaub are half-brothers who share the same biological father –

Edward G. Schaub. Their father died in late 2005, leaving, among other things, a 1997

Coachman Maxxum 5th wheel travel trailer (the trailer). The underlying lawsuit was initiated

by a complaint for replevin concerning that trailer filed under Ind. Code Ann. § 32-35-2 et

seq. (West, Westlaw current through P.L. 171 with effective dates through May 7, 2013) (the

Replevin Statute) by David in his capacity as personal representative of Edward’s estate (the

Estate). As a result of the lawsuit, John was ordered to pay $12,000 to the Estate as damages

for wrongful detention of the trailer. John appeals from that order.

       We reverse.

       The facts favorable to the judgment are that Edward, a Florida resident, died in Florida

on November 3, 2005. At the time of his death, Edward had lived in the trailer with David’s

mother for at least ten years.       On January 18, 2006, John was appointed personal

representative of his father’s estate. All parties seemed to agree that the intention was to sell

the trailer. In order to eliminate logistical impediments to doing so, John moved the trailer

from Florida, which had been Edward’s state of residence, to John’s property in Montgomery

County, Indiana. On September 14, 2006, John filed an inventory of Edward’s estate listing

the estimated fair market value of the trailer to be $15,000. The estimation was based upon a

combination of John’s Internet research and the amount Edward had at some point during his

lifetime indicated he would accept from another son – Tom – who apparently was interested

in purchasing the trailer. That sale was never completed. In November 2007, John

advertised the trailer in a classified ad in Trader magazine, with the list price as “$15,000


                                               2
obo.” Exhibit Binder, Plaintiff’s Exhibit 3. 1 There is evidence that this was John’s only

attempt to liquidate the trailer while it was in his possession.

        On July 23, 2009, the Orange County Circuit Court in Florida issued an order to show

cause to John and to Roger Albright, attorney for the Estate. The order directed them to

appear and show cause why they failed to file and serve a petition for discharge and final

accounting by the deadline imposed by the Florida court. Both John and Albright failed to

appear for the September 2 hearing. Accordingly, on November 12, 2009, the Florida court

issued an “Order Removing Personal Representative and Revoking Letters of Administration

[and] Appointing Successor Personal Representative.” Id., Plaintiff’s Exhibit 7. In it, the

court removed John as personal representative of the Estate and appointed David as his

replacement. The court also retained jurisdiction “to impose such sanctions and/or surcharge

as may be appropriate against [John and Albright] for failure to diligently probate this Estate,

failure to comply with order of this Court, and maladministration of the Estate.” Id.

        Terry Brooks, a Florida attorney, was appointed as successor attorney for the Estate.

On December 21, 2009, Brooks sent a letter notifying John that David would be contacting

John about surrendering possession of the trailer to David within thirty days. Brooks also

asked John to furnish Brooks with the certificate of title for the trailer. David thereafter

attempted approximately seven times to contact John through emails and phone calls, but was

not successful. John never responded to David’s emails or voice mails.


1
  The title affixed to this unpaginated volume of the transcript is actually “Table of Contents.” Although it
does contain a table of contents for the trial transcript, it also contains an exhibit index, as well as all of the
exhibits offered at trial. We therefore have designated it as the “Exhibit Binder” for the sake of clarity.


                                                        3
       On May 31, 2011, David, on behalf of the Estate, filed a complaint for replevin in

Montgomery Superior Court #2 seeking return of the trailer, which sat unused on John’s

property from the time it was moved there in 2006 until the replevin action was filed in the

early summer of 2011. The Estate also sought damages resulting from John’s wrongful

possession of the trailer. On August 3, 2011, the parties executed an agreed entry apparently

resolving the issue of possession. The matter of “potential damages” however, remained

unresolved. Transcript at 4. A trial was conducted on September 5, 2012 on the issue of

damages. Both David and John appeared and offered evidence at trial. At the conclusion of

trial, the court issued findings and conclusions awarding damages against John and in favor

of the Estate in the amount of $12,000, which represented the amount the trailer had

diminished in value while in John’s possession. John appeals the damages award. Further

facts will be provided where relevant.

       We note that the Estate did not file an appellee’s brief. When an appellee fails to

submit a brief, we apply a less stringent standard of review with respect to the showing

necessary to establish reversible error. In re Paternity of S.C., 966 N.E.2d 143 (Ind. Ct. App.

2012), aff’d on reh’g, 970 N.E.2d 248, trans. denied. In such cases, we may reverse if the

appellant establishes prima facie error, which is an error at first sight, on first appearance, or

on the face of it. Id.

       John appeals from a judgment accompanied by findings of fact and conclusions of

law. Pursuant to Indiana Trial Rule 52(A), “[o]n appeal of claims tried by the court without a

jury ... the court on appeal shall not set aside the findings or judgment unless clearly


                                                4
erroneous, and due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” When a trial court’s judgment is accompanied by specific

findings and conclusions, we apply a two-tiered standard of review. Millikan v. Eifrid, 968

N.E.2d 243 (Ind. Ct. App. 2012). We construe the findings liberally in support of the

judgment and first consider whether the evidence supports those findings. Id. Findings are

clearly erroneous when a review of the record leaves us firmly convinced that a mistake has

been made. Id. Next, we must determine whether the findings support the judgment. Id. A

judgment is clearly erroneous when the findings of fact and conclusions thereon do not

support it. Id. We will disturb the judgment only when there is no evidence supporting the

findings or the findings fail to support the judgment. Id. In performing this review, we do

not reweigh the evidence and consider only the evidence favorable to the trial court’s

judgment. Id.

       “A replevin action is a speedy statutory remedy designed to allow one to recover

possession of property wrongfully held or detained as well as any damages incidental to the

detention.” Dawson v. Fifth Third Bank, 965 N.E.2d 730, 735 (Ind. Ct. App. 2012) (quoting

United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1066 (Ind. Ct. App.

2004)). This appeal does not focus upon the Estate’s right to possess the trailer, but rather

upon the trial court’s award of $12,000 in damages to the Estate pursuant to I.C. § 32-35-2-

33(2) (West, Westlaw current through P.L. 171 with effective dates through May 7, 2013)

(authorizing an award of damages for detention of the property), and I.C. § 32-35-2-35

(West, Westlaw current through P.L. 171 with effective dates through May 7, 2013)


                                             5
(assigning to the fact-finder the task of assessing the damages for the detention of the

property). As John aptly points out, a replevin action is premised upon the fact that

possession of the personal property in question was wrongful. See I.C. § 32-35-2-1 (West,

Westlaw current through P.L. 171 with effective dates through May 7, 2013). He contends

this condition was not established in the present case. We conclude that it was, but that the

judgment is flawed for related, but different, reasons.

       We first address the threshold question of whether possession must be “wrongful” in

order to be actionable under the Replevin Statute and, by extension, to justify an award of

damages. This requires an inquiry into the meaning of the statute. Our initial task in

interpreting a statute involves determining “whether the Legislature has spoken clearly and

unambiguously on the point in question.” City of N. Vernon v. Jennings Nw. Reg’l Utils., 829

N.E.2d 1, 4 (Ind. 2005). “When a statute is clear and unambiguous, we need not apply any

rules of construction other than to require that words and phrases be taken in their plain,

ordinary, and usual sense. … Clear and unambiguous statutes leave no room for judicial

construction.” Id.

       Must possession be wrongful to justify an award of damages under the Replevin

Statute? We conclude that the language of the statute answers this question resoundingly in

the affirmative. I.C. § 32-35-2-1 provides, “[i]f any personal goods, including tangible

personal property constituting or representing choses in action, are … (1) wrongfully taken or

unlawfully detained from the owner or person claiming possession of the property … the

owner or claimant may bring an action for the possession of the property.” (Emphasis


                                              6
supplied.) As indicated above, in a replevin action, a court is authorized to award not only

possession, but also damages. See I.C. § 32-35-2-33(2).

       The next question is whether John’s possession of the trailer was “wrongful” within

the meaning of I.C. § 32-35-2-1 for any or all of the period from the time he moved the trailer

to Indiana in 2006 until approximately May 2011, when he transferred possession to the

Estate following the filing of the replevin action. Although the Replevin Statute does not

define the term “wrongful”, we discern no reason from context or otherwise to ascribe to it

anything other than its ordinary meaning, i.e., “having no legal claim.” Merriam Webster’s

Online Dictionary, available at http://www.merriam-webster.com/dictionary/dictionary (last

visited on June 5, 2013).

       Indisputably, John’s possession initially was not wrongful. Indeed, it was John’s duty

as personal administrator of his father’s estate to take possession of his father’s assets and

property for the purpose of paying his father’s debts and then distributing whatever property

remained pursuant to Edward’s will or the applicable statute of intestate succession. Thus,

with respect to that period of time, i.e., while his possession of the trailer was not

“wrongful”, the Estate could not recover damages for his continued possession. One

problem presented in this case is, when did the period of wrongful possession commence? It

can be argued that his possession became wrongful no later than July 23, 2009, which was

when the Florida court issued a show-cause order directing John to explain and justify the

fact that he had not yet concluded the affairs of his father’s estate, which included liquidating

the trailer. Or, perhaps it could be deemed to have become wrongful on November 12, 2009,


                                               7
which was the date of the Florida court’s “Order Removing Personal Representative and

Revoking Letters of Administration Appointing Successor Personal Representative.” Exhibit

Binder, Plaintiff’s Exhibit 7. Certainly, his possession was wrongful by or about December

21, 2009, the date of the letter from replacement counsel for the Estate, which informed John

that David would be contacting him to arrange delivery of the trailer into the Estate’s

possession. In any event, we can find no basis in the evidence to pinpoint a date, or even an

approximate time-frame, earlier than July 23, 2009 on which his possession of the trailer

transformed from legal to wrongful.

       In the end, however, it does not matter which of the above three dates is chosen.

Indeed, any date other than the date of initial possession suffers the same fatal flaw; there is

no evidence concerning the value of the trailer on that date. We have held that the Replevin

Statute authorizes an award of damages only for damage (in this case, diminution of the

value of the trailer) that is attributable to the period of wrongful possession. In order to

accurately determine that amount, the court would need evidence relative to the value of the

property at the time wrongful possession commenced, which would then be compared to the

value of the property at the time possession was surrendered to the party seeking replevin.

See I.C. § 32-35-2-35. The difference between those two amounts, assuming a decrease in

the value, would be the measure of damages available under I.C. § 32-35-2-33(2).

       In the present case, the court determined the value of the trailer at the time possession

commenced to be $15,000. This assessment was based largely, and perhaps exclusively,

upon an inventory of Edward’s estate filed by John on September 14, 2006, pursuant to his


                                               8
duties as personal representative. John’s assessment, in turn, was based in part upon his own

Internet research and in part upon the fact that Edward had negotiated with a third son about

that son purchasing the trailer. John was aware that Edward had been willing to take $11,000

for the trailer at that earlier time, although that sale ultimately did not materialize. With

respect to the $15,000 asking price in the Trader ad, John testified that he “just threw it out

there to see if we could get a bite on it,” Transcript at 28, and that he “intentionally went high

on it, figuring there’d be some wiggle room if somebody made an offer.” Id. at 31. Scant

though it may be, this was nonetheless evidence to support the trial court’s finding that the

initial value of the trailer was $15,000. The only other evidence concerning the trailer’s

value related to the trailer’s value at the time possession was surrendered to the Estate in June

2011. That amount was $3000. The low appraisal was based in part upon its general

condition, and in part upon the fact that the refrigerator and air conditioner were determined

to be not functioning at that time. The difference between the two amounts – $12,000 –

represented the trial court’s award of damages.

       The fatal flaw in the trial court’s award of damages is that the initial figure represents

the value of the trailer when John first took possession, which we reiterate was lawful

possession. The trial court did not determine a date on which John’s possession of the trailer

became wrongful. Even if it had, and even if this court could choose a date from among the

possible alternatives identified above, there is no evidence in the record from which we may

determine the value of the trailer at that time, i.e., the time when possession commenced to

be wrongful.


                                                9
       It is well established that the plaintiff in a replevin action bears the burden of proof in

proving the elements of a replevin claim. See Robertson v. Mattingly, 413 N.E.2d 647 (Ind.

Ct. App. 1980). This includes the claim for damages in the Estate’s replevin action. The

Estate presented no evidence relative to the value of the trailer on the date that John’s

possession became wrongful. It may very well be that the value of the trailer on that date

was less than $15,000, perhaps much less. In any event, the Estate failed in its burden of

proof as to this element. John has established a prima facie case of error, and therefore the

damage award is reversed.

       Judgment reversed.

ROBB, C.J., and CRONE, J., concur.




                                               10
