Nathan Abernathy v. Larry Bertram and Keith Broyles

FOR PUBLICATION FILED
Apr 23 2012, 9:02 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
MATTHEW C. MOORE JON D. MADISON
Fechtman Law Firm DeFur Voran LLP
Indianapolis, Indiana New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NATHAN ABERNATHY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 33A04-1106-CC-317
)
LARRY BERTRAM and KEITH BROYLES, )
)
Appellees-Defendants. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Mary G. Willis, Judge
Cause No. 33C01-0906-CC-206
April 23, 2012
OPINION - FOR PUBLICATION
MAY, Judge
Nathan Abernathy appeals some of the trial court’s findings in his action against Keith
Broyles and Larry Bertram for breach of contract, quantum meruit, unjust enrichment, and
conversion. He presents two issues for our review:
1. Whether the trial court abused its discretion when it denied him a damages
award equal to an expected payment from Abernathy’s crop insurance policy;
and
2. Whether the trial court erred when it determined Abernathy was not entitled to
damages for conversion.
We affirm.
FACTS AND PROCEDURAL HISTORY
In the late spring of 2007, Broyles and Abernathy entered into an oral agreement
whereby Abernathy would pay cash to rent farm land from Broyles. Abernathy cleared the
land and planted winter wheat for harvest in the summer of 2008. At some point during the
summer of 2008, Broyles and Abernathy spoke regarding Abernathy’s failure to pay rent.
After that conversation, Broyles hired Bertram to harvest the wheat Abernathy planted, and
Broyles sold it to a grain mill for $3,293.74.
On June 4, 2009, Abernathy filed a complaint against Broyles for breach of contract
and quantum meruit. Abernathy stated a claim against Broyles and Bertram for unjust
enrichment and damages for conversion pursuant to Ind. Code § 34-24-3-1. On March 25,
2011, the trial court awarded Abernathy $3,950.00. That amount was based on the amount
for which Broyles sold it the crop and the value of lost hay or straw, minus $2,000.00 in rent
2
Abernathy owed Broyles. The trial court found Abernathy proved his breach of contract,
unjust enrichment, and quantum meruit claims, but it denied his conversion claim.
DISCUSSION AND DECISION
When, as is the case here, a trial court enters findings of fact and conclusions of law
sua sponte, the findings “control only as to the issues they cover and a general judgment will
control as to the issues upon which there are no findings.” Tracy v. Morell, 948 N.E.2d 855,
862 (Ind. Ct. App. 2011). We review findings for clear error and we review conclusions of
law de novo. Boyer v. Ind. Dep’t of Natural Res., 944 N.E.2d 972, 983 (Ind. Ct. App. 2011).
A judgment is clearly erroneous if no evidence supports the findings, the findings do not
support the judgment, or the trial court applied the wrong legal standard. Id. at 983-84.
Our review of a challenge to a trial court’s award of damages is limited. Prime Mort.
USA, Inc. v. Nichols, 885 N.E.2d 628, 656 (Ind. Ct. App. 2008). We affirm if the amount of
damages is supported by evidence on the record, and we do not reweigh the evidence or
judge the credibility of witnesses. Id. We consider only the evidence favorable to the award,
and affirm if the award is “within the scope of the evidence before the finder of fact.” Id.
1. Damages for Breach of Contract
The trial court awarded $3,950.00 in damages for Broyles’ breach of the parties’ oral
contract. Abernathy argues the trial court should have awarded him an additional $9,223.00,
which was the value of a crop insurance policy he allegedly was due. The trial court found,
regarding Abernathy’s crop insurance policy:
[Abernathy] purchased crop insurance. [Broyles] was not a party to this crop
insurance contract. [Abernathy] never paid the crop insurance premium and
3
[Abernathy] is unable to make a claim under the policy. The crop insurance
policy does not guarantee a minimum price for the crop unless the crop is a
total loss. There is no evidence as to what the loss on this crop would have
been, only the full amount that was possible under the policy.
(App. at 8.)
That finding was supported by the evidence. Abernathy and his insurance agent,
Chely Broerman, testified Abernathy applied for insurance. Broerman testified the
application “made [Abernathy’s] insurance valid.” (Tr. at 55.) Abernathy and Broerman
testified Abernathy did not pay the premium. Broerman testified Abernathy was not required
to pay his premium until after he harvested the crop, and Abernathy would receive $9,223.00
minus his premium “if he had had a total loss.” (Id. at 57.) Thus, she said, “if he’s had a
total loss on that, the amount due to him would have been Eight Thousand, Seven Hundred,
and Sixty-five Dollars ($8,765.00).” (Id.)
However, there was no such “total loss”: the wheat Abernathy planted was harvested
and sold. Evidence presented at trial indicated there would be a partial payout of the policy
even if the wheat crop was not a total loss, but Abernathy did not present evidence indicating
what that amount would be. Therefore, the trial court would have been required to “indulge
in speculation in fixing the amount to be awarded,” Greives v. Greenwood, 550 N.E.2d 334,
337 (Ind. Ct. App. 1990), if it based damages on the value of the insurance policy.
Thus, the court’s finding regarding the crop insurance was supported by evidence, and
Abernathy’s argument to the contrary is an invitation to reweigh the evidence, which we may
not do. See Prime Mort. USA, Inc., 885 N.E.2d at 656 (appellate court may not reweigh the
4
evidence when trial court makes findings of fact). Accordingly, we hold the trial court did
not err when it determined the amount to award Abernathy as damages for breach of contract.
2. Damages for Conversion
In his complaint, Abernathy asserted, “Pursuant to Indiana Code 34-24-3-1, Abernathy
is entitled to treble damages and attorney’s fees as a result of Defendants’ conversion.”
(App. at 16.) Ind. Code § 34-24-3-1 states, in relevant part:
If a person . . . suffers a pecuniary loss as a result of a violation of IC 34-43, IC
35-42-3-3, IC 34-42-3-4, or IC 35-45-9, the person may bring a civil action
against the person who caused the loss for the following:
(1) An amount not to exceed three (3) times:
(A) the actual damages of the person suffering the loss
***
(2) The costs of the action.
(3) A reasonable attorney’s fee.
The statute also allows the plaintiff to receive damages for travel expenses, compensation for
loss of time, compensation for plaintiff’s employees and agents used to pursue the action, and
“[a]ll other reasonable costs of collection.” (Id.) A person commits criminal conversion
when he “knowingly or intentionally exerts unauthorized control over property of another
person[.]” Ind. Code § 34-43-4-3.
The trial court denied Abernathy’s conversion complaint, finding:
1. [Abernathy] first contacted Defendant Broyles in 2007 in an attempt to
negotiate a farming agreement with [Broyles].
2. The parties agree that [Abernathy] could plant a crop and that cash rent
would be paid to [Broyles].
3. [Abernathy] planted the crop with the consent of [Broyles].
4. The parties hotly dispute the nature of their conversation in the summer
of 2008 which caused Broyles to hire Bertram to harvest the crop.
Broyles claims that Abernathy told him to harvest the crop because
there would not be sufficient proceeds to pay cash rent. Abernathy
5
denies this claim and asserts that he informed Broyles that the cash rent
could be paid from the harvested crop and/or crop insurance proceeds,
if necessary. Broyles denies knowledge of the crop insurance.
5. The Court finds that these assertions cannot be reconciled sufficiently
for [Abernathy] to establish the elements of conversion.
6. The Court finds that the Plaintiff shall take nothing under Count IV of
the complaint and the Court declines to award treble damages and
attorney fees pursuant to I.C. 34-24-3.
(App. at 10.) Abernathy argues the trial court erred when it denied his claim for damages for
conversion because he presented all the necessary elements for conversion. We disagree.
Abernathy claimed damages pursuant to Ind. Code § 34-24-3-1, alleging Broyles and
Bertram committed conversion. That statute requires the elements of criminal conversion be
proven by a preponderance of the evidence. McKeighen v. Daviess County Fair Board, 918
N.E.2d 717, 723 (Ind. Ct. App. 2009). Thus, Abernathy had to prove Broyles and Bertram
“knowingly or intentionally” exercised unauthorized control over his property. Ind. Code §
34-43-4-3. The court found he did not prove mens rea because Broyles presented testimony
Abernathy told him to harvest the crop. We decline Abernathy’s invitation to reweigh the
evidence. See Prime Mort. USA, Inc. 885 N.E.2d at 656 (appellate court may not reweigh the
evidence when trial court makes findings of fact). The trial court did not err when it denied
Abernathy’s conversion claim.
CONCLUSION
The trial court’s findings regarding the value of Abernathy’s crop insurance policy
were supported by evidence, and the trial court did not err when it did not include the value
of the crop insurance policy in the amount of damages it ordered Broyles to pay. The trial
6
court did not err when it denied Abernathy’s conversion claim because Abernathy did not
prove by a preponderance of the evidence Broyles and Bertram intended to exercise
unauthorized control over Abernathy’s property. Accordingly, we affirm the decision of the
trial court.
Affirmed.
CRONE, J., and BROWN, J., concur.
7