John P. Schaub v. The Estate of Edward G. Schaub and David Schaub, Personal Representative

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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.
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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.
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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
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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)
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(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
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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,
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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
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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.
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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.
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