MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       May 22 2017, 9:24 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                                 ATTORNEY FOR APPELLEE
Justin K. Clouser                                      David Rosselot
Noel Law                                               Rosselot Law Office
Kokomo, Indiana                                        Kokomo, Indiana




                                         IN THE
    COURT OF APPEALS OF INDIANA

Ryan Adams,                                            May 22, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       34A05-1607-PL-1598
        v.                                             Appeal from the Howard Circuit
                                                       Court
Amber Baker,                                           The Honorable Lynn Murray,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       34C01-1411-PL-1011



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017      Page 1 of 10
                                      Statement of the Case
[1]   Ryan Adams appeals the trial court’s judgment in favor of Amber Baker on

      Baker’s complaint for replevin and damages. Adams presents two issues for our

      review, which we restate as follows:

              1.      Whether the trial court erred when it concluded that the
                      parties had an implied contract regarding the money Baker
                      spent on bail for Adams and on accessories for Adams’
                      truck.

              2.      Whether the trial court erred when it did not offset the
                      judgment by the amount Adams had paid for living
                      expenses when he and Baker lived together.


[2]   We affirm.


                                Facts and Procedural History
[3]   From August 2011 to February 2014, Adams and Baker were involved in a

      romantic relationship and lived together. In August 2011, Adams and Baker

      bought a house in Kokomo on contract. Baker paid $3,000 for the down

      payment, plus $500 for a pet deposit. Adams and Baker began to make

      extensive renovations to the house. Baker paid a total of $1,459.49 towards

      “materials used in the remodeling.” Appellant’s App. Vol. II at 10. Adams and

      Baker also bought several new appliances that were financed through H.H.

      Gregg. Baker and Adams paid $2,136.25 and $1,148, respectively, towards the

      balance for the appliances.




      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 2 of 10
[4]   In February 2012, Adams was arrested for driving while intoxicated. After

      consulting with Adams’ mother, Baker paid $866.31 to bail Adams out of jail.

      Adams did not repay Baker that money. From April through July 2013, Baker

      paid “for improvements” to Adams’ truck, such as tires, a lift, lights, and a grill.

      Id. at 11. Baker spent a total of $3,525.23 for those items. Adams did not repay

      Baker that money.


[5]   Baker moved out of the house in February 2014. On November 17, Baker filed

      a complaint for replevin and damages against Adams alleging in relevant part

      that Adams had been unjustly enriched by the money she had spent on the

      house, appliances, Adams’ bail, and Adams’ truck. In his answer and

      counterclaim, Adams alleged that Baker had been unjustly enriched by living in

      the house with Adams without contributing to the rent or utility payments. In

      her answer to Adams’ counterclaim, Baker alleged that Adams would have paid

      the same amount in rent had Baker not lived there, and she stated that she

      helped to pay some of the utilities, taxes, and “other household expenses.” Id.

      at 19.


[6]   Following an evidentiary hearing, the trial court entered findings and

      conclusions as follows:

               1. Amber Baker (herein “Amber”) and Ryan Adams (herein
               “Ryan”) were involved in a romantic relationship from August
               2010 to February 2014. During most of that time, from August
               2011 through February 2014, they cohabitated and shared living
               expenses. The parties were never married, and have no children
               together.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 3 of 10
        2. Both parties were employed, and maintained separate bank
        and credit card accounts. During their cohabitation, each
        contributed his or her individual assets and income to household
        expenses and items for the home.

        3. In August 2011, they jointly entered into a contract to
        purchase residential real estate located at 1913 Misty Autumn
        Lane, Kokomo. Amber paid the required downpayment of
        $3000.00 plus pet deposit of $500.00. They subsequently
        completed the purchase of the real estate, and then when their
        relationship ended, Amber deeded and released her interest in the
        property to Ryan. He currently owns and occupies the real
        estate.

        4. While residing together in the home, Ryan paid all the
        monthly contract and mortgage payments, except one paid by
        Amber. Ryan also paid all the property tax payments except one
        paid by Amber. Both parties contributed to utility payments.

        5. After purchasing the home, Ryan and Amber extensively
        remodeled the bathrooms. Amber paid a total of $1,459.49 for
        materials used in the remodeling, $588.94 for purchases from
        Menards, and $870.55 for purchases from Home Depot.

        6. After purchasing the home, new appliances were purchased
        and installed. Of the cost for the appliances purchased from
        H.H. Gregg and financed through G.E. Capital, Amber made
        payments totaling $2,136.25, and Ryan made payments totaling
        $1,148.00.

        7. When Amber left the property in February 2014, she took
        various items of furnishings and personal property, while leaving
        at the home other items of personal property and appliances.
        Among the items Amber took were a Samsung 55” television and
        Ipad purchased from Best Buy. Among the items left at the
        residence were an entertainment center purchased from
        Walmart, a desk chair, computer monitor and tower.

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 4 of 10
        8. In February 2012, Ryan was arrested for driving a vehicle
        while intoxicated. Amber paid bail for Ryan to be released from
        jail in the sum of $866.31, which funds were not returned or
        repaid to Amber.

        9. During the period April through July 2013, with Ryan’s
        consent and knowledge, Amber purchased items for Ryan for
        improvements to his truck, including a set of tires, lift, lights, and
        grill, which items totaled $3,525.23. Said purchases were not
        intended as a gift. Ryan has not reimbursed any said funds
        expended by Amber for these purchases.

        10. On November 17, 2014, Amber initiated this action by filing
        a complaint for replevin and for damages, seeking certain items
        of personal property and a judgment for funds she had expended
        for or to the benefit of Ryan.

        11. On January 5, 2015, Ryan filed an answer and counterclaim,
        seeking a judgment or credit for funds he had expended for or to
        the benefit of Amber.

        12. A bench trial was held and concluded May 3, 2016. The
        court took all matters under advisement pending a written order.

        13. Indiana law provides “a party who cohabitates with another
        person without subsequent marriage is entitled to relief upon a
        showing of an express contract or a viable equitable theory such
        as an implied contract or unjust enrichment.” Bright v. Kuehl, 650
        N.E.2d 311, 315 (Ind. Ct. App. 1995), reh’g denied; Turner v.
        Freed, 792 N.E.2d 947, 950 (Ind. Ct. App. 2003).

                                              ***

        19. In the case here, Amber expended sums for a real estate
        down payment, as well as financed extensive remodeling costs
        and new appliances at the time the parties had an expectation of
        sharing the property as a residence. In fact, the parties shared the
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 5 of 10
        benefit of the real estate during their cohabitation. Since their
        break up, Ryan has retained the real estate with the
        improvements and appliances to his sole benefit. To allow Ryan
        to retain the benefit without restitution to Amber would be
        unjust.

        20. The court finds Amber is entitled to recover from Ryan the
        $3,500.00 she paid as a down payment for the real estate,
        $1,459.49 in costs she paid for remodeling the home, and
        $2,136.55 she paid towards the purchase of appliances that have
        remained in the home.

        21. The court further finds Amber has shown there was an
        implied contract for reimbursement of the $866.31 she paid for
        Ryan’s bail after his arrest in 2012.

        22. The court further finds Amber has shown there was an
        implied contract for reimbursement of the $3,525.23 she paid for
        improvements to Ryan’s truck in 2013.

        23. The court declines to find that either party has a viable claim under
        contract or equitable grounds against the other for recovery of other
        payments made such as for household and living expenses, including
        mortgage, utilities, or tax payments made. Both benefitted from these
        payments for expenses incurred during their cohabitation.

        24. The court also declines to find Ryan is entitled to payment or
        a credit from Amber for the rental value of residence during the
        parties’ cohabitation.

        25. The court further finds and orders Amber is entitled to the
        entertainment center currently in Ryan’s possession. She shall
        retain the Samsung television.

        26. The court further finds and orders Ryan shall be entitled to
        the Ipad currently in Amber’s possession. He shall retain the
        desk chair, computer tower and monitor.
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 6 of 10
              26. Except as specifically provided herein, each party shall retain
              all other items of personal property currently in his or her
              possession.

              27. Based upon the above, Amber is awarded a judgment against
              Ryan in the sum of $11,487.58. It is ordered, adjudged, and
              decreed, the Defendant Ryan Adams shall pay the sum of
              $11,487.58 to the Plaintiff Amber Baker, said sum reduced to
              judgment.


      Id. at 36-40 (emphasis added). This appeal ensued.


                                    Discussion and Decision
                                           Standard of Review

[7]   Where, as here, the trial court issues findings of fact and conclusions thereon

      pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review.

      Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076-77 (Ind. Ct. App. 2011), trans.

      denied. First, we determine whether the evidence supports the findings, and

      second whether the findings support the judgment. Id. at 1077. We will reverse

      only if there is no evidence supporting the findings or the findings fail to

      support the judgment. Id. We review the findings of fact using a clearly

      erroneous standard. Id. Clear error occurs when our review of the evidence

      most favorable to the judgment leaves us firmly convinced that a mistake has

      been made. Id. We review the conclusions of law using a de novo standard.

      Id.




      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 7 of 10
                                       Issue One: Implied Contract

[8]    Adams first contends that the trial court erred when it concluded that he had

       impliedly contracted to reimburse Baker for the money she spent on his bail and

       on accessories for his truck. To recover under the theory of implied contract,

       the plaintiff is usually required to establish that the defendant impliedly or

       expressly requested the benefits conferred. Bright v. Kuehl, 650 N.E.2d 311, 315

       (Ind. Ct. App. 1995). Any benefit, commonly the subject of pecuniary

       compensation, which one, not intending it as a gift, confers upon another who

       accepts it, is an adequate foundation for a legally implied or created promise to

       render back its value. Id.


[9]    Adams’ sole contention on this issue is that Baker had intended the bail money

       and truck accessories as gifts. But Baker testified that Adams had agreed to pay

       her back for those expenditures. Adams’ arguments on appeal amount to

       nothing more than a request that we reweigh the evidence, which we will not

       do. The trial court did not err when it concluded that Adams had impliedly

       contracted to reimburse Baker for the money she spent on bail and truck

       accessories.


                                             Issue Two: Setoff

[10]   Adams next contends that,


               [i]f allowing Adams to accept the benefit of Baker’s payments
               and purchases result[ed] in an unjust enrichment on his behalf, as
               ruled by the trial court, then Baker’s expense[-]free lifestyle
               during the period of cohabitation would also be an unjust

       Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 8 of 10
               enrichment. Therefore, Adams’ contribution of mortgage
               payments, utility payments, and tax payments should be taken
               into account and offset any judgment owed to Baker.


       Appellant’s Br. at 9. In essence, Adams contends that the trial court’s Finding

       23 is not supported by the evidence. Further, without any citation to the record

       on appeal, Adams alludes to an “implied contract that existed between the

       parties as it pertained to mortgage, utility, and tax expenses,” which, he

       maintains, also supports a setoff. Id. We cannot agree.


[11]   Adams does not support this contention with citations to the record or cogent

       argument. Indeed, Adams does not include in his brief on appeal any

       calculation of the amount of setoff to which he claims to be entitled. Adams

       merely states, without citation to evidence in the record, that his contributions

       “should be taken into account and offset any judgment owed to Baker.” Id.

       (emphasis added). To the extent Adams contends that Baker was unjustly

       enriched as a result of living with him rent-free, again, he asks that we reweigh

       the evidence, which we will not do.


[12]   As Adams correctly states, to recover under an unjust enrichment claim, a

       plaintiff must generally show that he rendered a benefit to the defendant at the

       defendant’s express or implied request, that the plaintiff expected payment from the

       defendant, and that allowing the defendant to retain the benefit without

       restitution would be unjust. Reed v. Reid, 980 N.E.2d 277, 296 (Ind. 2012)

       (emphasis added). Adams had the burden to prove that Baker was unjustly

       enriched, and, thus, he appeals from a negative judgment. See Smith v. Derm.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 9 of 10
       Assocs. of Ft. Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App. 2012). Adams does

       not direct us to any evidence that he expected payment from Baker for rent

       while she lived with him. Indeed, the evidence shows that the parties shared

       household and living expenses, with Baker helping to pay utilities and Baker’s

       parents buying Adams and Baker food “most of the time.” Tr. at 40. Thus,

       Adams has not demonstrated that Baker was unjustly enriched.


[13]   In contrast, while both parties benefited from sharing their household and living

       expenses, as the trial court found, Adams “has retained the real estate with the

       improvements and appliances [purchased by both parties] to his sole benefit.

       To allow [Adams] to retain the benefit without restitution to [Baker] would be

       unjust.” The trial court did not err when it declined Adams’ request to offset

       his contributions to the parties’ household and living expenses against any

       judgment “and award no money to Baker.” Appellant’s Br. at 11.


[14]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1607-PL-1598 | May 22, 2017   Page 10 of 10
