Wanda M. Self and Anthony L. Self v. The Estate of Ralph E. Collins (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 29 2020, 8:49 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
William H. Mullis Jennifer Tucker Young
William H. Mullis, P.C. Tucker and Tucker, P.C.
Mitchell, Indiana Paoli, Indiana
John-Paul H. Isom
Isom Law Office, P.C.
Paoli, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wanda M. Self and Anthony L. January 29, 2020
Self, Court of Appeals Case No.
Appellants-Defendants, 19A-PL-811
Appeal from the Orange Circuit
v. Court
The Honorable Joseph L.
The Estate of Ralph E. Collins, Claypool, Special Judge
Appellee-Plaintiff Trial Court Cause No.
59C01-1607-PL-178
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 1 of 9
Case Summary
[1] Following a bench trial, the trial court concluded that Wanda M. Self and her
son Anthony L. Self converted $35,000 that belonged to the late Ralph E.
Collins, and the court awarded Collins’s estate (“the Estate”) $87,500 in
damages plus $20,000 in attorney’s fees. The Selfs now appeal, arguing that the
trial court erred in concluding that they converted Collins’s property. We
reverse the trial court’s ruling as to Anthony but affirm it as to Wanda.
Facts and Procedural History
[2] The relevant facts are undisputed. Wanda and Collins lived together as a
couple for thirty years, during which she prepared and signed practically all
checks for a checking account owned by Collins, for which she was Collins’s
agent. In August 2006, Wanda wrote a check on the account for $34,000; the
check was made out to Wanda and purportedly signed by Collins but was
actually signed by Wanda. Wanda deposited the funds into a joint checking
account bearing her name and Anthony’s name. Wanda then wrote a check on
that account to purchase a $20,000 certificate of deposit issued in her name and
Anthony’s name. The certificate of deposit signature card, which is signed only
by Wanda, states that it is a joint account with rights of survivorship. Ex. Vol.
at 44. In February 2011, Wanda wrote another check on Collins’s account for
$1000; the check was made out to cash and purportedly signed and endorsed by
Collins but was actually signed and endorsed by Wanda. Wanda did not tell
Collins about any of these transactions.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 2 of 9
[3] In 2012, Wanda became a joint owner of Collins’s account. In 2016, Collins
discovered that his account was depleted. In July of that year he filed a
complaint against Wanda and Anthony alleging undue influence and
requesting the imposition of a constructive trust. 1 In September 2016, the Selfs
filed a motion to dismiss for failure to state a claim pursuant to Indiana Trial
Rule 12(B)(6), which the trial court denied. In March 2017, Collins filed an
amended complaint alleging conversion. Collins died in May 2017, and the
Estate was substituted as plaintiff.
[4] A bench trial was held in July 2018. The Selfs requested findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52(A). In October 2018,
the trial court issued an order that sets out the foregoing facts. The court
concluded that Wanda committed constructive fraud as Collins’s agent and
further concluded as follows:
7. In addressing this case, the following applies:
a. The principal agent relationship created a duty;
b. Wanda M. Self remained silent that she had
taken $34,000.00 from the account over which she
1
According to Collins’s son Thomas, Wanda was hospitalized in 2016, and Collins wanted Thomas “to get
his checkbook and pay his bills for him.… There should have been over $300,000 [in the account, primarily
from sales of farmland in 2006 and 2009], and there wasn’t anything to speak of.” Tr. Vol. 2 at 74, 81.
Collins became “[v]ery upset” and confronted Wanda when she came home from the hospital. Id. at 82.
Wanda told him “he had no money.” Id. Aside from the foregoing transactions, the trial court found that
“[t]he depletion of cash assets indicated by the amount left for [Collins] at the time of assessment of funds
available for [Collins] cannot, from the evidence presented, be attributable to the actions of either [Wanda or
Anthony].” Appealed Order at 3.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 3 of 9
was agent for Ralph E. Collins, when she had a
duty to tell Ralph E. Collins what she had done;
c. Wanda M. Self remained silent that she had
taken $1,000.00 from the account over which she
was agent for Ralph E. Collins, when she had a
duty to tell Ralph E. Collins what she had done.
d. Ralph E. Collins’s account was depleted by the
$35,000.00 which Wanda M. Self took to her son’s
and her benefit by filling in two (2) checks and
signing Ralph Collins’s name on those checks;
e. Ralph E. Collins lost $35,000.00; and
f. Defendants Wanda M. Self and her son Anthony
L. Self secured $35,000.00 that they should not have
received.
8. Indiana code section 35-43-4-3 provides the person who
knowingly or intentionally exerts unauthorized control over
property of another person commits criminal conversion, a Class
A misdemeanor. Pursuant to IC 34-24-3-1, if a person suffers
pecuniary loss as a result of a violation of Ind. Code § 35-43, the
person may bring a civil action against the person who caused
the loss for an amount not to exceed three times the actual
amount of the damages of [the] person suffering the loss[,] costs
of the action, reasonable attorney fees, actual travel expenses,
and compensation for lost time, among other damages.
JUDGMENT
Plaintiff, Estate of Ralph E. Collins, is entitled to and shall
receive judgment against the defendants, Wanda M. Self and
Anthony L. Self, in the sum of $87,500.00 (2.5 × actual damages
of $35,000.00) together with interest from the date of this
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 4 of 9
judgment until paid at the statutory rate. Further, Plaintiff shall
recover and receive attorney fees and expenses attributable to the
prosecution of this cause of action. The Court shall hold a
hearing as to interest, attorney fees and other allowable costs and
expenses to determine the amount thereof.
Appealed Order at 5-6 (citation and underlining omitted).
[5] The Selfs filed a motion to correct error, which was denied, and the trial court
entered judgment in favor of the Estate for $20,000 in attorney’s fees plus
interest. This appeal ensued.
Discussion and Decision
Section 1 – The trial court clearly erred in concluding that
Anthony converted Collins’s property.
[6] We first address the Selfs’ argument that the trial court erred in concluding that
Anthony converted Collins’s property. 2 Where, as here, a party has requested
findings of fact and conclusions thereon pursuant to Trial Rule 52(A), we
engage in a two-tiered standard of review. Bowyer v. Ind. Dep’t of Nat. Res., 944
N.E.2d 972, 983 (Ind. Ct. App. 2011). We determine whether the evidence
supports the findings and whether the findings support the judgment. Id. We
will set aside the trial court’s findings and conclusions “only if they are clearly
2
The Selfs also argue that the Estate’s amended complaint fails to state a claim against Anthony. But they
did not file a motion to dismiss the amended complaint pursuant to Trial Rule 12(B)(6) or raise the issue at
trial pursuant to Trial Rule 12(H). They cite no authority for the proposition that they preserved the issue for
appeal by summarily asserting failure to state a claim as an affirmative defense in their answer to the
amended complaint pursuant to Trial Rule 8(C). Consequently, we do not address this argument.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 5 of 9
erroneous, that is, if the record contains no facts or inferences supporting
them.” Purnell v. Purnell, 131 N.E.3d 622, 627 (Ind. Ct. App. 2019), trans.
denied. An inference may fail as a matter of law when it rests on nothing more
than speculation or conjecture. In re M.W., 869 N.E.2d 1267, 1270 (Ind. Ct.
App. 2007). A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake has been made. Bowyer, 944
N.E.2d at 983-84. We neither reweigh the evidence nor assess witness
credibility, but consider only the evidence most favorable to the judgment. Id.We review legal conclusions de novo. Id.[7] “The elements necessary to establish a civil cause of action for conversion are
found in the criminal conversion statute, although a plaintiff in a civil
conversion action is required to prove those elements only by a preponderance
of the evidence.” McKeighen v. Daviess Cty. Fair Bd., 918 N.E.2d 717, 723 (Ind.
Ct. App. 2009). A person commits conversion by knowingly or intentionally
exerting unauthorized control over property of another person. Ind. Code § 35-
43-4-3(a). “A person engages in conduct ‘knowingly’ if, when he engages in the
conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-
41-2-2(b). And “[a] person engages in conduct ‘intentionally’ if, when he
engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-
41-2-2(a). To “exert control over property” is “to obtain, take, carry, drive, lead
away, conceal, abandon, sell, convey, encumber, or possess property, or to
secure, transfer, or extend a right to property.” Ind. Code § 35-43-4-1(a). That
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 6 of 9
control is unauthorized if it is exerted “without the other person’s consent[.]”
Ind. Code § 35-43-4-1(b)(1).
[8] The Selfs assert that the Estate presented no evidence that Anthony ever
knowingly or intentionally exerted unauthorized control over the funds that
Wanda withdrew from Collins’s account. We agree. Collins’s son Thomas
testified that he did not believe that Anthony wrote any checks on Collins’s
account and that he had “no idea” whether Anthony “was involved in taking
any money from” Collins. Tr. Vol. 2 at 100. Anthony denied having any
involvement in or knowledge about Wanda’s transactions involving the $34,000
check, 3 and he was asked no specific questions about the $1000 check. The
Selfs observe that the Estate presented no evidence that Anthony ever withdrew
Collins’s funds, used them as collateral for a loan, received interest on them,
benefited from them, or otherwise exerted any control over them. To the extent
that Anthony might have “obtain[ed]” or “possess[ed]” Collins’s funds for
purposes of Indiana Code Section 35-43-4-1(a) as a joint owner of the accounts
into which Wanda deposited the funds, there is no evidence that such was
knowing or intentional, as required by Indiana Code Section 35-43-4-3(a). 4
3
Regarding the certificate of deposit, Anthony testified that Wanda “wanted somebody on the CD in case
something happened to her. She wanted somebody out of the family on there, and I just happened to be the
one.” Tr. Vol. 2 at 119. When asked how his name got on the checking account into which Wanda
deposited the $34,000, he testified, “Well, I guess they’d done that at the same time. I guess. I don’t know.”
Id. at 120.
4
Anthony disputes whether he was a joint owner of the checking account, but in his deposition he did not
contradict opposing counsel’s characterization of the account as one in which he was a “joint owner[.]” Ex.
Vol. at 92.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 7 of 9
Accordingly, we hold that the trial court clearly erred in concluding that
Anthony converted Collins’s property, and therefore we reverse the judgments
against him. 5
Section 2 – The trial court did not clearly err in concluding
that Wanda converted Collins’s property.
[9] The Selfs also contend that the trial court erred in concluding that Wanda
converted Collins’s property. They concede that “there is evidence in the trial
record indicating that Wanda knowingly exerted control over [Collins’s] bank
account” but assert that no evidence was presented that this control was
unauthorized. Appellants’ Br. at 17. We disagree. Wanda wrote Collins’s
signature on the checks instead of signing them as his agent, cashed the $1000
check, and deposited the $34,000 check in an account that he did not own, all
without Collins’s knowledge. From this evidence, a trier of fact reasonably
could infer that Collins did not authorize Wanda’s exertion of control over his
property. Wanda’s arguments to the contrary are merely invitations to reweigh
the evidence, which we may not do. Therefore, we affirm the judgments
against her. 6
5
We are unpersuaded by the Estate’s reliance on Clark-Silberman v. Silberman, 78 N.E.3d 708 (Ind. Ct. App.
2017), because there is no evidence that Anthony ever knowingly or intentionally exerted control over
Collins’s funds.
6
Consequently, we need not address Wanda’s arguments regarding the trial court’s award of damages and
attorney’s fees, which are premised on her assertion that she is not liable for conversion.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 8 of 9
[10] Affirmed in part and reversed in part.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-811 | January 29, 2020 Page 9 of 9