Anthony Brown and Mark S. Smith v. Danny Webb (mem.…

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Dec 28 2020, 10:24 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
James E. Ayers                                           Bill Green
Wernle, Ristine & Ayers                                  Crawfordsville, Indiana
Crawfordsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Brown and                                        December 28, 2020
Mark S. Smith,                                           Court of Appeals Case No.
Appellants,                                              20A-PL-846
                                                         Appeal from the Montgomery
        v.                                               Circuit Court
                                                         The Honorable Harry A. Siamas,
Danny Webb,                                              Judge
Appellee                                                 Trial Court Cause No.
                                                         54C01-1609-PL-681



Weissmann, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020                   Page 1 of 8
[1]   Danny Webb’s son sold Anthony Brown a Chevrolet Camaro for $16,000, but

      Brown never retitled the vehicle. When police later impounded the Camaro,

      Webb paid the impound fees of $1,745 and returned the vehicle to his son to

      resell.


[2]   Brown appeals the trial court’s entry of judgment against him on his claim that

      Webb intentionally exerted unauthorized control of the Camaro. Finding

      evidence to support the trial court’s conclusion that Webb simply made a

      mistake, we affirm.


[3]   We also affirm the trial court’s entry of judgment against Webb on his

      counterclaim for reimbursement of impound fees and repair costs. Finally, we

      affirm the denial of a claim by Brown’s friend Mark Smith for personal property

      damages related to disposal of clothes he left in the Camaro.


                                                    Facts
[4]   In 2014, Brown purchased a Chevrolet Camaro from Webb’s son for $16,000.

      Thereafter, for various reasons, Brown was unable to title and register the

      vehicle in Indiana. The Camaro therefore remained titled in Ohio in the names

      of Webb and his son.


[5]   A year later, Brown’s friend Mark Smith was caught driving the unregistered

      Camaro, and police impounded the vehicle with Lyon Wrecker Service

      (“Lyon”). Pursuant to Indiana Code § 9-22-6-2, Lyon sent Smith and Webb

      notice of a mechanic’s lien, advising that they could redeem the Camaro by

      paying Lyon’s impound fees or the vehicle would be sold at auction. In
      Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 2 of 8
      response to the notice, Webb contacted Lyon’s owner, Raymond Warren, and

      advised that Webb’s son had sold the Camaro to Brown. Warren, however,

      assured Webb he still could redeem the vehicle because it remained titled in his

      name. Accordingly, Webb paid Lyon’s impound fees of $1,745 and took

      possession of the vehicle in early March 2016.


[6]   Webb promptly returned the Camaro to his son, who disposed of its contents.

      According to Smith, the Camaro contained “[p]robably about eight thousand

      dollars” worth of his personal property when the vehicle was impounded. Pl.’s

      Ex. 3, p. 14. The property primarily consisted of Smith’s wardrobe, including

      100 Harley-Davidson t-shirts and 30 Harley-Davidson button-up shirts, which

      Smith valued at $5,250 total. Smith did not provide values for any of his other

      personal property items.


[7]   In late March 2016, the Camaro broke down, and Webb incurred over $2,000

      in repair costs. Not long thereafter, Brown’s attorney contacted Webb and

      demanded the Camaro’s return. On March 28, 2016, Brown’s attorney sent

      Webb’s attorney a letter that stated, in pertinent part:


              We have been informed that Mr. Webb paid Lyon’s Towing
              $1,745.00, for the tow and impound fee and took the vehicle to
              Ohio.


              Mr. Brown is willing to reimburse Mr. Webb for all fees and pay
              a reasonable amount for his time, and effort and for safeguarding
              the vehicle.




      Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 3 of 8
      Def.’s Ex. C. The following week, Webb’s attorney left a voicemail message

      with Brown’s attorney, advising that “Webb had incurred other costs besides

      just the . . . towing fees and storage fees.” Tr. pp. 62-63. The two attorneys had

      no further communication until the underlying lawsuit was filed.


[8]   In Brown and Smith’s complaint, Brown asserted a replevin claim for Webb’s

      return of the Camaro. Brown and Smith also asserted conversion claims against

      Webb, seeking actual damages, punitive damages, and attorney’s fees under

      Indiana Code § 34-24-3-1. Webb filed a counterclaim against Brown, seeking

      reimbursement of his Camaro-related expenses. Following a bench trial, the

      trial court entered judgment in favor of Brown on his replevin claim and

      ordered Webb to return the Camaro to Brown immediately. On every other

      claim, however, the trial court entered judgment against the complaining party.


                                        Standard of Review
[9]   Where a trial court issues findings of fact and conclusions of law under Indiana

      Trial Rule 52(A), we affirm when both the evidence supports the findings and

      the findings support the judgment. Wysocki v. Johnson, 

18 N.E.3d 600

, 603 (Ind.

      2014). We “shall not set aside the findings or judgment unless [they are] clearly

      erroneous,” and we must give “due regard ... to the opportunity of the trial

      court to judge the credibility of the witnesses.” T.R. 52(A). “Findings of fact are

      clearly erroneous only when they have no factual support in the record, and a

      judgment is clearly erroneous if it applies the wrong legal standard to properly




      Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 4 of 8
       found facts.” 

Wysocki, 18 N.E.3d at 603-04

(internal citations and quotations

       omitted).


                                    Discussion and Decision

                               I. Brown’s Conversion Claim
[10]   Brown challenges the trial court’s conclusion that he failed to prove Webb had

       the requisite intent to commit criminal conversion under Indiana Code § 35-43-

       4-3. That statute provides: “A person who knowingly or intentionally exerts

       unauthorized control over property of another person commits criminal

       conversion. . . .”

Id. To establish the

intent element of the crime, “a plaintiff

       must show the defendant was aware of a high probability his control over the

       plaintiff’s property was unauthorized.” JET Credit Union v. Loudermilk, 

879 N.E.2d 594

, 597 (Ind. Ct. App. 2008).


[11]   The trial court concluded Webb was not aware of a high probability that his

       control over Brown’s Camaro was unauthorized because “Webb was under the

       mistaken belief that he legally could obtain possession of the Camaro from

       Lyon . . . by paying the [impound] fees.” J. ¶ 3. This conclusion is supported by

       the trial court’s undisputed findings. Specifically, the trial court found that Lyon

       sent Webb written notice that he could take possession of the Camaro by

       paying the impound fees. The trial court also found that, after Webb disclosed

       to Warren that Webb’s son had sold the Camaro to Brown, Warren assured

       Webb he still could redeem the vehicle by paying the impound fees because the

       title remained in Webb’s name.

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 5 of 8
[12]   Much of Brown’s argument on appeal is that Webb lacked a good faith basis for

       withholding the Camaro until Brown reimbursed Webb for his expenses.

       However, in his letter to Webb’s attorney, Brown’s attorney stated Brown was

       willing to reimburse Webb for the impound fees—lending credence to Webb’s

       demand for reimbursement. Yet Brown’s attorney did not respond when

       Webb’s attorney contacted him to discuss the matter further. On these facts, we

       do not find Webb’s request for reimbursement to have been in bad faith.


[13]   Ultimately, the trial court determined Webb was credible in his testimony that

       he believed his possession of the Camaro was authorized. As we defer to the

       trial court’s findings on such issues, Brown’s appeal is nothing more than a

       request for us to reweigh the evidence, which we cannot do. See Auto Liquidation

       Ctr., Inc. v. Chaca, 

47 N.E.3d 650

, 655 (Ind. Ct. App. 2015). Finding no clear

       error in the trial court’s conclusion as to Webb’s intent, we affirm the court’s

       judgment in favor of Webb and against Brown on Brown’s conversion claim.


                               II. Smith’s Conversion Claim
[14]   Smith argues that the trial court erred in failing to award Smith both nominal

       and punitive damages on his claim that Webb converted Smith’s shirts and the

       other personal property Smith allegedly left in the Camaro. But “a judgment

       will not be overturned for failure to award nominal damages,” and “a party

       must establish actual damages in order to recover punitive damages.” Large v.

       Gregory, 

417 N.E.2d 1160

, 1165 (Ind. Ct. App. 1981). Smith does not challenge

       the trial court’s conclusion that he failed to prove actual damages. He therefore

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 6 of 8
       has waived the issue. See French v. State, 

778 N.E.2d 816

, 826 (Ind. 2002)

       (holding appellant waived issue by not raising it in his appellant’s brief).


[15]   Waiver notwithstanding, the trial court’s conclusion is not clearly erroneous.

       The only evidence Smith presented of his actual damages was Smith’s

       testimony that he “probably” lost $8,000 worth of personal property, including

       more than $5,000 in used shirts. The trial court was within its discretion in

       finding this speculative and self-serving testimony “not credible.” J. ¶ 4. See

       T.R. 52(A); see also Best v. Best, 

941 N.E.2d 499

, 502 (Ind. 2011) (“Appellate

       judges are not to reweigh the evidence nor reassess witness credibility.”).

       Without actual damages, Smith’s claim for punitive damages fails. See 

Large, 417 N.E.2d at 1165

. We therefore affirm the trial court’s judgment in favor of

       Webb and against Smith on Smith’s conversion claim.


                           III. Webb’s Reimbursement Claim
[16]   Webb seemingly asserts a cross-appeal in his Appellee’s Brief, stating he

       “should be allowed to recoup” the expenses he incurred in connection with the

       Camaro. Appellee’s Br. 22. Webb goes on to generally cite—without

       explanation or analysis—Kahle v. Crown Oil Co., 

180 Ind. 131

, 

100 N.E. 681

       (1913), and Am. Sand & Gravel Co. v. Spencer, 

55 Ind. App. 523

, 

103 N.E. 426

       (1913). To the extent Webb suggests this case law entitles him to relief, he




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020   Page 7 of 8
       waived the issue by failing to develop a cogent argument.1 See Ind. Appellate

       Rule 46(A)(8)(a) (The argument section of an appellant’s brief “must contain

       the contentions of the appellant on the issues presented, supported by cogent

       reasoning.”). We therefore affirm the trial court’s judgment against Webb on

       his claim for reimbursement.


[17]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       1
        The cases concern the measure of damages when an innocent trespasser converts mineral substances from
       another’s land, thereby increasing their value. 

Kahle, 100 N.E. at 687-88

; Am. Sand & Gravel 

Co., 103 N.E. at 428

. We fail to see how this might apply to Webb’s claim for reimbursement.

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-846 | December 28, 2020                   Page 8 of 8
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