                                                                                                     FILED
                                                                                                Jun 07 2016, 8:26 am

                                                                                                     CLERK
      ATTORNEY FOR APPELLANTS                                     ATTORNEY FOR APPELLEE         Indiana Supreme Court
                                                                                                   Court of Appeals
                                                                                                     and Tax Court

      Leanna Weissmann                                            Greg S. Morin
      Lawrenceburg, Indiana                                       Montgomery, Elsner & Pardieck, LLP
                                                                  Seymour, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Otter Creek Trading Company,                               June 7, 2016
      Inc., and Daniel Pohle,                                    Court of Appeals Case No.
                                                                 40A01-1509-MI-1432
      Appellants-Defendants,
                                                                 Appeal from the Jennings Superior
              v.                                                 Court
                                                                 The Honorable Matthew D. Bailey,
                                                                 Special Judge
      PCM Enviro PTY, LTD,
                                                                 Cause No. 40D01-1410-MI-49
      Appellee-Plaintiff.




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Otter Creek Trading Company is operated by Appellant-

      Defendant Daniel Pohle (collectively, “Defendants”) and manufactures and

      sells lead smelters. Appellee-Plaintiff PCM Enviro PTY, LTD (“PCM”), is an

      Australian company owned and operated by Craig Mitchell and his brother

      Paul that recycles lead shot collected from shooting clubs. In 2014, Craig, in

      his capacity as operator of PCM, arranged to purchase a smelter from Otter

      Creek and paid for it in full. Defendants, however, did not ship the smelter or

      Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016                 Page 1 of 23
      another part (purchased separately and called a Broekema belt) that Defendants

      had offered to ship along with the smelter and which the defendant Pohle had

      retrieved from a shipping company in Edinburgh, Indiana.


[2]   PCM sued Defendants for breach of contract and for conversion of the

      Broekema belt. Pohle, pro se, filed a letter with the trial court, alleging that

      Defendants had no signed contract with PCM and that he had never driven to

      Minnesota to collect the Broekema belt. After the trial court advised

      Defendants to secure legal representation, they did for a time but filed no

      further response to PCM’s complaint. Eventually, the trial court entered

      default judgment against Defendants and held a hearing on damages. After the

      hearing, the trial court ordered a total of approximately $147,000.00 in

      damages, which included the price of the smelter, lost profits, the value of the

      Broekema belt, and punitive damages for conversion. Defendants appeal,

      contending that the trial court erred in entering default judgment, in denying

      their motions to correct error and for relief from judgment, and in calculating

      damages. Finding no error, we affirm.



                             Facts and Procedural History
[3]   Otter Creek is an Indiana corporation operated by Pohle which manufactures

      and sells lead smelters to customers outside the United States. PCM is an

      Australian company owned and operated by Craig and his brother Paul that

      recycles lead shot collected from shooting clubs. In July of 2014, Craig, in his

      capacity as operator of PCM, arranged to purchase a smelter from Otter Creek

      Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016     Page 2 of 23
      and paid for it in full by July 31, 2014. Otter Creek, however, did not ship the

      smelter. At some point before deciding not to ship the smelter, Pohle told PCM

      that there would be room in the smelter packaging and invited PCM to ship

      other items to Otter Creek so that they could be shipped with the smelter. PCM

      desired to ship a part called a Broekema belt (purchased from a company in

      Minnesota) along with the smelter, and, to that end, Pohle retrieved PCM’s

      Broekema belt from the freight company in Edinburgh, Indiana. At one point,

      Pohle refused to release the Broekema belt to a friend of Craig’s who had driven

      from Wisconsin.


[4]   On October 17, 2014, PCM filed its complaint against Defendants, alleging that

      they had breached the contract for the purchase of the smelter and that they had

      converted the Broekema belt:

                                                COMPLAINT
              Plaintiff, [PCM] complains of the Defendants … and alleges and
              says:
                                                  I. PARTIES
              1.       [PCM] is now, and at all times mentioned in this
                       complaint was, a corporation duly organized and existing
                       under the laws of Australia, with their principal place of
                       business located in Melbourne, Victoria, Australia.
              2.       [Pohle] is currently a resident of the County of Jennings,
                       Indiana, and is president of [Otter Creek].
              3.       [Otter Creek] is now, and at all times mentioned in this
                       complaint was, a corporation duly organized and existing
                       under the laws of State of Indiana, with their principal
                       place of business located in Jennings County, Indiana, and


      Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 3 of 23
                 is engaged in and is transacting business as a company in
                 Jennings County, Indiana.
                                           II. COUNT I
                                 BREACH OF CONTRACT
        4.       [Otter Creek], by its president, [Pohle], offered to
                 manufacture and provide a three (3) ton gas fired lead
                 smelter to PCM.
        5.       [PCM] accepted Defendant’s offer on or about July 5,
                 2014, to have Defendant manufacture a three (3) ton gas
                 fired lead smelter.
        6.       Plaintiff was to pay Defendant a total of $15,000.00 per
                 the terms of the contract with half the amount due initially
                 and the remaining half due upon completion of the
                 smelter.
        7.       Plaintiff complied with the terms of the contract and made
                 both payments representing $15,000.00 in total to Otter
                 Creek via wire transfer.
        8.       On August 7, 2014, [Otter Creek] sent a letter signed by
                 Pohle, as president, to PCM stating the three (3) ton gas
                 fired lead smelter was completed, tested and that they were
                 waiting on F.O.B. shipping instructions from PCM.
        9.       The August 7, 2014 letter also stated the $15,000.00 owed
                 by PCM had been paid.
        10.      [Defendants] have refused to release or ship the smelter
                 since this time even after shipping instructions were
                 supplied and repeated demands by PCM.
        11.      Pohle falsely claims that PCM and [Craig] intend to steal
                 his intellectual property by purchasing the smelter and
                 copying it.
        12.      [Defendants] have refused to return the $15,000.00 they
                 received to perform this contract to PCM.
        13.      [Defendants] have breached the contract with PCM by
                 their failure to perform their obligations under the
Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016      Page 4 of 23
                 contract, specifically, releasing and delivering the smelter
                 to PCM.
        14.      PCM has been materially damaged as a result of
                 [Defendants’] intentional breach of contract.
                                          III. COUNT II
                                         CONVERSION
        15.      The allegations of rhetorical paragraphs four through
                 fourteen are incorporated herein by reference.
        16.      PCM had contracted with a third party, Lead Us Reclaim,
                 LLC, of Augusta, Wisconsin, to purchase a Broekema
                 USA belt.
        17.      [Defendants] had agreed to ship the belt with the above-
                 mentioned smelter to PCM.
        18.      On August 5, 2014, Pohle drove to Broekema USA and
                 told them that he was picking up a belt to package with the
                 lead smelter that was to be shipped to PCM.
        19.      The Broekema belt was released to Pohle and he signed a
                 Conway Freight delivery receipt for the belt.
        20.      PCM had arranged for shipping for the lead smelter and
                 belt on three separate occasions but Pohle refused to
                 release the equipment and complete his performance of the
                 contract.
        21.      The belt in Pohle’s possession has never belonged to him
                 and he has refused to return or release the belt after
                 multiple demands by PCM and [Craig].
        22.      Pohle has intentionally converted the belt he was to ship
                 with the smelter to PCM by keeping the belt for his own
                 use and knowing he never ha[d] permission from PCM to
                 retain the belt.
        23.      Plaintiff has suffered significant loss and damage due to
                 the conversion of Plaintiff’s Broekema belt and money by
                 [Defendants].


Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016         Page 5 of 23
              24.      Defendants through conversion and theft have deprived
                       PCM of the entire value of the belt and equipment along
                       with all profits past and future.
              WHEREFORE, Plaintiff, PCM, demands judgment against the
              Defendants, in an amount adequate to fully and fairly
              compensate him for his damages, prejudgment interest, punitive
              and treble damages, attorney fees, the cost of this action, and for
              all other appropriate relief.
      Appellant’s App. pp. 23-25.


[5]   On November 10, 2014, Defendants filed a letter with the trial court, which

      stated, in part,

              a)       At no time has Otter Creek Trading Co., Inc. nor Daniel
                       L. Pohle ever entered into any signed agreement with any
                       Corporation, Company, Resident or Citizen of the
                       Country of Australia.
              b)       I, Daniel L. Pohle, did not travel to Minnesota where
                       Broekema USA is located in reference to any belt.
      Appellant’s App. p. 26.


[6]   On November 12, 2014, Defendants filed a discovery request with the trial

      court requesting PCM’s articles of incorporation and Craig’s international

      travel records, proof of residence, and address. On November 18, 2014, the

      trial court urged Defendants to seek the assistance of counsel. On November

      26, 2014, Defendants filed a letter thanking the trial court and informing it that

      they would be retaining counsel and attempting to have the matter transferred

      to federal court. On December 18, 2014, counsel for Defendants filed an

      appearance and moved for a forty-five day extension of time within which to

      answer PCM’s complaint, which motion the trial court granted. On December
      Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 6 of 23
      29, 2014, counsel for Defendants withdrew his appearance. Defendants filed

      no further response to PCM’s complaint within the forty-five-day extension

      period.


[7]   On February 5, 2015, PCM moved for default judgment on the basis that

      Defendants had not filed an answer to its complaint. That day, the trial court

      entered default judgment in favor of PCM and ordered a hearing for the

      purpose of setting damages. On May 22, 2015, the trial court held a hearing on

      the issue of damages. On June 17, 2015, the trial court issued its judgment for

      damages, finding that PCM had suffered damages of $15,000 for money

      retained, $127,256.50 for lost profits, $1281.30 for money spent on the

      converted Broekema belt, and $3000.00 in punitive damages, totaling

      $146,537.80. That day, the trial court also denied Defendants’ motion to

      dismiss PCM’s complaint. On July 17, 2015, Defendants filed a motion to

      correct error and for relief from judgment, which the trial court denied.


[8]   Defendants argue on appeal that (1) the trial court erred in entering default

      judgment against them because they adequately answered PCM’s complaint,

      (2) the trial court abused its discretion in denying their motion to correct error

      and for relief from judgment, and (3) the trial court abused its discretion in

      determining PCM’s damages. PCM responds that (1) the trial court properly

      entered default judgment in its favor because Defendants filed multiple letters

      with the trial court but never admitted or denied any of PCM’s allegations, (2)

      the trial court did not abuse its discretion in denying Defendants’ motion to



      Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016     Page 7 of 23
       correct error and for relief from judgment, and (3) the trial court properly

       awarded damages for lost profits to PCM.



                                   Discussion and Decision
            I. Whether the Trial Court Abused its Discretion in
               Entering Default Judgment in Favor of PCM
[9]    Indiana Rule of Trial Procedure 8(B) provides, in part, that “[a] responsive

       pleading shall state in short and plain terms the pleader’s defenses to each claim

       asserted and shall admit or controvert the averments set forth in the preceding

       pleading.” Trial Rule 8(D) provides, in part, that “[a]verments in a pleading to

       which a responsive pleading is required, except those pertaining to amount of

       damages, are admitted when not denied in the responsive pleading.” “When 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, the party may be defaulted by the court.” Trial R. 55(A).


[10]   “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).” Trial R.

       55(C).


                The trial court’s resolution of these questions, on both entering
                and setting aside a default judgment, is a matter of discretion,
                and we will reverse a ruling on these questions only for an abuse
                of discretion. Taco Bell Corp. v. United Farm Bureau Mut. Ins. Co.
                (1991), Ind. App., 567 N.E.2d 163, 165, trans. denied; [Green v.
                Karol, 166 Ind. App. 467, 473, 344 N.E.2d 106, 110.] That is, we

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 8 of 23
               will reverse only “if the trial court’s decision is clearly against the
               logic and effect of the facts and circumstances before the court, of
               the reasonable, probable, and actual deductions to be drawn
               therefrom.” Myers v. Myers (1990), Ind., 560 N.E.2d 39, 42.
       State, Dep’t of Nat. Res. v. Van Keppel, 583 N.E.2d 161, 163 (Ind. Ct. App. 1991),

       trans. denied.


                                                   A. Count I
[11]   In Count I, PCM alleges that Defendants entered into a contract with PCM to

       provide it a lead smelter in exchange for $15,000.00 and accepted payment, but

       never delivered the smelter or returned payment. Defendants’ entire response

       to these allegations was: “At no time has Otter Creek Trading Co., Inc. nor

       Daniel L. Pohle ever entered into any signed agreement with any Corporation,

       Company, Resident or Citizen of the Country of Australia.” Appellant’s App.

       p. 26. Because this response neither confirms nor denies any of PCM’s specific

       allegations, they are deemed admitted pursuant to Trial Rule 8(D). Moreover,

       the response does not in any way directly respond to PCM’s contract claim, as

       PCM did not allege that it had a signed contract with Defendants. Simply put,

       even if we assume that Defendants have not ever entered into a signed

       agreement with PCM or any other Australian company, that would not help

       Defendants in this case because it does not represent a valid defense to PCM’s

       contract claim. Although, in general, a valid contract for the sale of goods for

       more than $500.00 must be in writing and signed by the party against whom

       enforcement is sought, a contract that does not meet these requirements is

       enforceable “with respect to goods for which payment has been made and


       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 9 of 23
       accepted or which have been received and accepted[.]” Ind. Code §§ 26-1-2-

       201(a), -201(c). The trial court did not abuse its discretion in entering default

       judgment in favor of PCM on Count I.


[12]   We are cognizant that Indiana has adopted the principles of notice pleading:

       “All pleadings shall be so construed as to do substantial justice, lead to

       disposition on the merits, and avoid litigation of procedural points.” Trial R.

       8(f). That said, the defects in Defendants’ answer to PCM’s contract claim

       were not merely of form; the content of the answer simply did not address any

       of PCM’s actual allegations. Our research has uncovered no Indiana case

       where a similarly non-responsive answer was deemed adequate under Trial

       Rule 8(b), and, while recent cases directly on point cannot be found, our

       conclusion is consistent with binding Indiana authority.


[13]   In the 1895 case of Moore v. Morris, 142 Ind. 354, 41 N.E. 796 (Ind. 1895), the

       appellees sued the appellants for fraud in the procurement of deeds from one of

       the appellees to certain lands in Hamilton County when that appellee was

       allegedly of unsound mind. Id. at 354, 41 N.E. at 796. Appellants’ response

       was based chiefly on the allegation that appellants were residents of Marion

       County and could not be sued in Hamilton County on a merely personal action.

       Id. The Indiana Supreme Court found this response to be inadequate, as it did

       not foreclose the possibility that appellants were Hamilton County residents

       when the action was begun. Id. Put another way, the response in Moore did not

       directly respond to the allegations in the complaint and therefore did not



       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 10 of 23
       necessarily provide a defense to the complaint, even if the averment were

       assumed to be true.


[14]   In Wilson v. Evansville & Cleveland Railroad Co., 9 Ind. 510 (1857), a suit upon a

       stock subscription, the complaint alleged that a Willard Carpenter had made the

       stock subscription on behalf of the defendant, who later ratified it. Id. at 510.

       The defendant answered, denying that he had made any stock subscription. Id.

       The Indiana Supreme Court concluded that the answer was inadequate because

       it was non-responsive:

               In this case, however, it is plain that the answer does not meet
               the allegations in the complaint. The latter avers that Willard
               Carpenter subscribed, and the defendant afterwards ratified. The
               former asserts that the defendant did not subscribe. It is true, the
               legal effect of the ratification, if a valid one, would be to make
               the defendant liable as a subscriber; but that liability, strictly
               speaking, would arise from the ratification, not the making of a
               subscription. The answer should have directly met the
               allegations in the complaint. It impliedly admits them. It is a
               kind of a negative pregnant.
       Id. at 511. We see no way to meaningfully distinguish the instant case from the

       binding precedent of Moore and Wilson. In failing to directly meet the

       allegations in Count I, Defendants have impliedly admitted them.


                                                  B. Count II
[15]   In Count II, PCM alleges that Defendants took possession of a Broekema belt

       that it had purchased, retained possession without PCM’s permission, and have

       refused to return the Broekema belt. Defendant Pohle’s response was “I,


       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 11 of 23
       Daniel L. Pohle, did not travel to Minnesota where Broekema USA is located

       in reference to any belt.” Appellant’s App. p. 26. Again, this response neither

       confirms nor denies any of PCM’s allegations, which are therefore deemed

       admitted. At most, Pohle denies that he traveled to Minnesota to collect the

       Broekema belt, something that PCM did not specifically allege. In any event,

       Defendants’ denial is hardly material, as the place where Pohle took possession

       of the Broekema belt is not an element of conversion. Defendants do not deny

       that they took possession of the Broekema belt or that they still have it. As with

       PCM’s first claim, because Defendants’ response did not directly meet PCM’s

       allegations, Defendants have impliedly admitted them. The trial court did not

       abuse its discretion in entering default judgment in favor of PCM.


           II. Whether the Trial Court Abused its Discretion in
            Denying Defendants’ Motions to Correct Error and
                   Motion for Relief From Judgment
[16]   “We review a denial of a request for new trial presented by a Trial Rule 59

       motion to correct error or a Rule 60(B) motion for relief from judgment for

       abuse of discretion.” Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265,

       1270 (Ind. 2008).

               A trial court has abused its discretion only if its decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or the reasonable inferences therefrom. The trial
               court’s decision comes to us cloaked in a presumption of
               correctness, and the appellant has the burden of proving that the
               trial court abused its discretion. In making our determination,
               we may neither reweigh the evidence nor judge the credibility of

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016      Page 12 of 23
               witnesses. Instead, we look at the record to determine if: “(a)
               the trial court abused its judicial discretion; (b) a flagrant injustice
               has been done to the appellant; or (c) a very strong case for relief
               from the trial court’s [order] … has been made by the appellant.”
       Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct.

       App. 2001) (citations omitted).


                                     A. Motion to Correct Error
[17]   Most of Defendants’ specific arguments in this section boil down to claims that

       they are entitled to relief based on the following, which Defendants seem to

       characterize as claims of newly-discovered evidence: PCM did not legally exist

       when it arranged to purchase the smelter from Defendants, PCM did not follow

       Indiana law when filing its complaint against Defendants, and Defendants did

       not ship the smelter to PCM due to Craig’s failure to adequately verify his

       identity.


               “Motions predicated upon newly discovered material evidence
               are viewed with disfavor.” Kimmel v. State (1981), 275 Ind. 575,
               418 N.E.2d 1152, 1157. Whether to grant a new trial on the
               grounds of newly discovered evidence is within the discretion of
               the trial court, and, on appeal from a denial of the motion, we
               reverse only if the trial court could not reasonably have reached a
               conclusion that, upon retrial, a different result was not probable.
               Id.
       Laudig v. Marion Cty. Bd. of Voters Registration, 585 N.E.2d 700, 712 (Ind. Ct.

       App. 1992), trans. denied.


[18]   In order to obtain relief on the basis of allegedly newly-discovered evidence,

       Defendants would have to establish that: (1) the evidence has been discovered

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 13 of 23
       since the default; (2) it is material and relevant; (3) it is not cumulative; (4) it is

       not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence

       was used to discover it in time for trial; (7) the evidence is worthy of credit; (8)

       it can be produced on a retrial of the case; and (9) it will probably produce a

       different result. See Wiles v. State, 437 N.E.2d 35, 39 (Ind. 1982).


[19]   At the very least, Defendants do not claim, much less establish, that evidence

       related to the three specific claims they make in this section was discovered

       following the entry of default judgment against them on February 5, 2015.

       Defendants do not claim that they were unaware of the facts underlying their

       alleged concerns about PCM’s legal capacity to sue them in an Indiana court

       before default judgment was entered. As for alleged concerns about the

       sufficiency of Craig’s identification, these surfaced soon after PCM made its

       final payment on the smelter according to Pohle’s own testimony at the

       damages hearing. (Tr. 95-97).


[20]   Moreover, Defendants have shown no likelihood of a different result were they

       to obtain a reversal of the trial court’s default judgment. Defendants’ first

       argument is based on the fact that PCM Enviro PTY LTD was not registered as

       a proprietary Australian company until July 17, 2014, which is after PCM

       agreed to purchase the smelter from Defendants. (Plaintiff’s Ex. 1). Although

       Defendants suggest that this somehow undermines the validity of their contract

       with PCM, we conclude that they have failed to establish that it does. PCM

       Enviro was registered as a business name on January 3, 2013, as an entity being

       held by the Treelawney Development Trust, which entity Craig testified he and

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 14 of 23
       Paul “turned … into a corporation” on July 17, 2014. Tr. p. 10. Contrary to

       Defendants’ claims, the evidence seems to establish, at most, that the PCM

       Enviro that contracted with Defendants was a predecessor in interest to the

       PCM Enviro that sued them.


[21]   Defendants also contend that PCM failed to follow Indiana law in pursuing its

       lawsuit. Defendants rely on Indiana Code section 23-1-49-2(a), which provides

       that “[a] foreign corporation transacting business in Indiana without a

       certificate of authority may not maintain a proceeding in any court in Indiana

       until it obtains a certificate of authority.” Subsection (c) of the same statute,

       however, provides that

               [a] court may stay a proceeding commenced by a foreign
               corporation, its successor, or assignee until it determines whether
               the foreign corporation or its successor requires a certificate of
               authority. If it so determines, the court may further stay the
               proceeding until the foreign corporation or its successor obtains
               the certificate.
[22]   While PCM did not originally have a certificate of authority, it obtained one on

       May 21, 2015. Plaintiff’s Ex. 1. In any event, as Indiana Code section 23-1-49-

       2(c) makes clear, PCM’s failure to obtain a certificate of authority had no effect

       on the validity of its lawsuit nor did it have any effect on its outcome. The only

       remedy Defendant would ever have been entitled to was a stay while PCM

       obtained a certificate of authority, which is certainly not a different result.


[23]   As for Defendants claim that they did not ship the smelter or Broekema belt

       because Craig failed to adequately identify himself, we cannot say that


       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016    Page 15 of 23
       Defendants have established that this argument would likely produce a different

       result either. There is evidence that Craig and Paul went to some lengths to

       comply with Pohle’s request to have Craig’s passport “certified” by the United

       States Embassy in Australia and/or the Australian Government. When the

       requested information was sent to Pohle, he still did not ship the smelter to

       PCM. In other words, there is evidence in the record that Craig took

       reasonable measures to identify himself to no avail. Moreover, there is also

       evidence that Pohle’s request for identification was a mere pretext, his true

       motivation for refusing to ship the smelter being fear of counterfeiting. Under

       the circumstances, we cannot say that raising the identification issue would

       have been likely to produce a different result. The trial court did not abuse its

       discretion in denying Defendants’ motion to correct error.


                             B. Motion for Relief From Judgment
[24]   Trial Rule 60(B) provides, in part, that “[o]n 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[.]” “A motion for relief from a judgment under

       T.R. 60(B) is addressed to the equitable discretion of the trial court.” Minnick v.

       Minnick, 663 N.E.2d 1226, 1228 (Ind. Ct. App. 1996).


               We review the grant or denial of … Trial Rule 60(B) motions for
               relief from judgment under an abuse of discretion standard.
               [Holmes, 885 N.E.2d at 1270]; Outback Steakhouse of Florida v.
               Markley, 856 N.E.2d 65, 72 (Ind. 2006). On appeal, we will not
               find an abuse of discretion unless the trial court’s decision is

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 16 of 23
               clearly against the logic and effect of the facts and circumstances
               before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888,
               889 (Ind. Ct. App. 1998).
       Cleveland v. Clarian Health Partners, Inc., 976 N.E.2d 748, 755 (Ind. Ct. App.

       2012), trans. denied.


               The burden is on the movant to demonstrate that relief under
               T.R. 60(B) is both necessary and just. Fairrow v. Fairrow, 559
               N.E.2d 597, 599 (Ind. 1990). Relief under T.R. 60(B) also
               requires that the movant make a prima facie showing of a
               meritorious defense for [reason (1)]. Smith v. Johnson, 711 N.E.2d
               1259, 1265 (Ind. 1999). A meritorious defense refers to
               “evidence that, if credited, demonstrates that a different result
               would be reached if the case were retried on the merits and that it
               is unjust to allow the default to stand.” Id.
       In re Rueth Dev. Co., 976 N.E.2d 42, 51 (Ind. Ct. App. 2012), trans. denied.


[25]   Much of what we said with regard to Defendants’ argument that the trial court

       abused its discretion in denying its motion to correct error is relevant here.

       Specifically, our conclusions about the three distinct defenses raised in that

       argument are present here; namely, that Defendants have failed to establish that

       any of them, if raised on retrial, would likely lead to a different result.


[26]   Defendants, however, also argue that the overall equities of the case favor them

       to the extent that reversal is warranted. We disagree with this assessment of the

       record. Aside from the potential defenses mentioned above, which we have

       already determined would be unlikely to produce a different result, Defendants

       also suggest that they were misled about the case, implying that they were




       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016       Page 17 of 23
       unaware default judgment had been entered against them on February 5, 2015,

       until the hearing on damages on May 22, 2015.


[27]   While Defendants may have been mistaken regarding the status of the case, we

       cannot conclude that they were wrongfully misled. The chronological case

       summary (“CCS”) contains several entries indicating both that default

       judgment had been entered; the May 22, 2015, hearing was to determine

       damages only; and Defendants were notified of all of the above. The CCS

       indicates that default judgment was served on Pohle on February 11, 2015, and

       the default judgment order scheduled a hearing on damages only. Defendants

       do not claim that they were not served with the default judgment. Moreover,

       although Defendants claim that their counsel did not know until just before the

       damages hearing that he would be defending against a claim of over

       $145,000.00, there does not seem to be any indication of such ignorance or

       confusion in the record.


[28]   Other circumstances weigh against Defendants. First and foremost, once

       Defendants determined that they would not ship the smelter or Broekema belt

       to PCM, they retained both PCM’s money and the belt. Even assuming that

       Defendants had a legitimate reason to cancel the sale, they do not explain why

       they did not simply refund PCM’s payment. Pohle also seems to be somewhat

       less than forthright about his reason for refusing to ship the smelter to PCM,

       blaming the whole incident on Craig’s alleged failure to establish his identity.

       As we have mentioned, Pohle actually seemed motivated by his fear—of which

       there is no evidence—that Craig intended to appropriate his intellectual

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       property. Defendants have failed to establish that relief from the default

       judgment entered against them is necessary and just.


                                                III. Damages
[29]   Defendants contend that the trial court abused its discretion in computing

       damages, arguing that the amount awarded for lost profits was based on

       speculation and in awarding punitive damages related to their conversion of the

       Broekema belt.


                                                A. Lost Profits
               It is axiomatic that a party injured by a breach of contract may
               recover the benefit of its bargain but is limited in its recovery to
               the loss actually suffered. Fowler v. Campbell, 612 N.E.2d 596,
               603 (Ind. Ct. App. 1993). A party injured by a breach of contract
               may not be placed in a better position than it would have enjoyed
               if the breach had not occurred. Id. A damage award must be
               based upon some fairly defined standard, such as cost of repair,
               market value, established experience, rental value, loss of use,
               loss of profits, or direct inference from known circumstances. Id.
               The damages claimed also must be the natural, foreseeable, and
               proximate consequence of the breach. Id. The foreseeability of
               damages is based upon facts known at the time of entry into the
               contract, not facts existing or known at the time of the breach.
               Berkel & Co. Contractors, Inc. v. Palm & Associates, Inc., 814 N.E.2d
               649, 658-59 (Ind. Ct. App. 2004).
               A party injured by a breach of contract may recover
               consequential damages from the breaching party. Rockford Mut.
               Ins. Co. v. Pirtle, 911 N.E.2d 60, 67 (Ind. Ct. App. 2009), trans.
               denied. “Such consequential damages may include lost profits,
               providing the evidence is sufficient to allow the trier of fact to
               estimate the amount with a reasonable degree of certainty and

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016      Page 19 of 23
                exactness.” Clark’s Pork Farms v. Sand Livestock Systems, Inc., 563
                N.E.2d 1292, 1298 (Ind. Ct. App. 1990). Consequential damages
                may be awarded if the non-breaching party’s loss flows naturally
                and probably from the breach and was contemplated by the
                parties when the contract was made. Rockford, 911 N.E.2d at 67.
                The party seeking such damages bears the burden of proving by a
                preponderance of the evidence that the breach was the cause in
                fact of its loss. Id. “This generally limits consequential damages
                to reasonably foreseeable economic losses.” Id.
       L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind. Ct. App.

       2012).


                When the specific issue on review relates to a question of
                inadequate or excessive damages, we will not reverse a damage
                award if it is within the scope of the evidence before the trial
                court, and we neither reweigh the evidence nor judge the
                credibility of the witnesses. Randles v. Ind. Patient’s Comp. Fund,
                860 N.E.2d 1212, 1230 (Ind. Ct. App. 2007), trans. denied.
       Ponziano Const. Servs. Inc. v. Quadri Enterprises, LLC, 980 N.E.2d 867, 873 (Ind.

       Ct. App. 2012).


[30]   Craig testified that he communicated the importance of receiving the smelter

       from Pohle, specifically, that PCM had just “done a deal” with a company

       named Champion Ammunitions to provide lead ingots. Tr. p. 40. The contract

       with Champion provided, inter alia, that PCM was to be paid a price tied to the

       price of lead listed on the London Metal Exchange (“LME”) at the time. Craig

       also testified that Defendants’ failure to deliver the smelter rendered them

       unable to fulfill their contract with Champion. Finally, Craig introduced

       evidence that, based on the LME price of lead at relevant times, the amounts of

       lead that PCM anticipated delivering but did not, and PCM’s costs, PCM’s lost
       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016        Page 20 of 23
       profits were $127,256.50. Defendants argue that Craig did not mitigate PCM’s

       damages by failing to identify himself sufficiently and PCM’s valuation of the

       lead it would have sold to Champion was artificially high. As we have

       mentioned, Craig made reasonable efforts to comply with Defendants’ request

       to identify himself. Moreover, Defendants’ argument regarding valuation

       amounts to an invitation to reweigh the evidence heard and evaluated by the

       trial court, which we will not do. Defendants have failed to establish that the

       trial court abused its discretion in awarding damages for lost profits.


                                           B. Punitive Damages
[31]   Defendants claim that insufficient evidence supports the trial court’s award of

       $3000.00 in punitive damages to PCM for Defendants’ conversion of the

       Broekema belt.


               The standard for determining if punitive damages were properly
               awarded is whether, considering only the probative evidence and
               the reasonable inferences supporting the judgment, a reasonable
               trier of fact could find by clear and convincing evidence that the
               defendant acted with malice, fraud, gross negligence or
               oppressiveness which was not the result of a mistake of fact or
               law, honest error of judgment, overzealousness, mere negligence,
               or other human failing. Punitive damages may also be awarded
               upon a showing of willful and wanton misconduct.
               Punitive damages are those designed to punish the wrongdoer
               and to discourage him and others from similar conduct in the
               future. Because they are awarded in addition to damages that
               compensate for the specific injury, the injured party has already
               been awarded all that he is entitled to as a matter of law.
               Therefore, the sole issue is whether the defendant’s conduct was
               so obdurate that he should be punished for the benefit of the

       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 21 of 23
               general public. Punitive damages are awarded upon a showing
               of intentional conduct, which focuses on the defendant’s state of
               mind.
       INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 582-83 (Ind. Ct. App.

       2003) (citations omitted), trans. denied.


[32]   Even if one takes Pohle’s professions of concern about Craig’s identity at face

       value, this has nothing to do with the Broekema belt. Defendants took

       possession of the Broekema belt and apparently kept it instead of allowing PCM

       to arrange alternate shipping to Australia. Indeed, Pohle refused to release the

       belt to Bill Moss, a friend of Craig’s that drove from Wisconsin on Craig’s

       behalf to retrieve it. Defendants had no legitimate interest in the Broekema belt

       which would justify refusing to release it to Moss. Given Pohle’s belief that

       Craig was attempting to “clone” his smelter, tr. p. 97, the trial court could

       reasonably infer that he harbored some malice toward Craig and PCM, which

       motived his conversion of the Broekema belt. The record contains sufficient

       evidence to sustain the trial court’s award of $3000.00 in punitive damages.



                                                Conclusion
[33]   We conclude that the trial court did not abuse its discretion in entering default

       judgment in favor of PCM or in denying Defendants’ motions to correct error

       and for relief from judgment. We further conclude that the trial court did not

       abuse its discretion in determining PCM’s compensatory damages from lost

       profit or punitive damages for Defendants’ conversion of the Broekema belt.



       Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016   Page 22 of 23
The judgment of the trial court is affirmed.


Bailey, J., and Altice, J., concur.




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