Coleman v. Coleman
| Decision Date | 31 May 2011 |
| Docket Number | No. 63A01–1009–PL–500.,63A01–1009–PL–500. |
| Citation | 949 N.E.2d 860 |
| Parties | Abram COLEMAN, Rhonda Coleman, and Jerry Wayne Coleman, Appellants,v.Cynthia Ann COLEMAN, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Boyd A. Toler, Toler Law Office, Petersburg, IN, Attorney for Appellant.Scott A. Funkhouser, Evansville, IN, Attorney for Appellee.
Abram Coleman, Rhonda Coleman, and Jerry Wayne Coleman (collectively “the Colemans”) appeal a judgment after jury trial in favor of Cynthia Coleman awarding her $20,000 in damages and $11,097 in attorney fees. We reverse and remand.
The restated issues before us are:
I. whether there is sufficient evidence in the record to support a judgment against the Colemans for unjust enrichment; and
II. whether the jury erred in awarding attorney fees to Cynthia.
Jerry Wayne and Abram are the sons of Jerry Coleman.2 Rhonda is married to Jerry Wayne. Cynthia was Jerry's fifth wife. Jerry and Cynthia were married from 1989 to 2006, when Jerry died. Cynthia is Jerry Wayne and Abram's stepmother.
In July 1984, Dale and Theresa Hornby deeded to Jerry Wayne a parcel of property located in Petersburg at 915 W. County Road 50 S. (“the 915 property”). There is conflicting evidence in the record as to how the 915 property was purchased. On the one hand, there was testimony that it was obtained in exchange for a 1969 Camaro that Jerry Wayne owned. On the other hand, a bank loan officer recalled that Jerry and Jerry Wayne both executed a loan to purchase the property and that it was Jerry who actually made payments on the loan. Tax bills for the property were sent to Jerry Wayne, but apparently Jerry paid those bills. The property always remained in Jerry Wayne's name only.
After the 915 property was obtained, Jerry and Jerry Wayne built a residence on it. Jerry Wayne asserts that he paid for the materials to build the home. At some point, Jerry married his fourth wife, Sharon, and they lived together at the 915 property. Jerry Wayne did not charge any rent to Jerry or Sharon. Jerry and Sharon divorced sometime in the 1980s. There is no evidence that the 915 property was included as part of the marital estate in that divorce.
Jerry married Cynthia in 1989, and they lived together at the 915 property. Again, Jerry Wayne charged no rent. It was Cynthia's belief that Jerry actually owned the 915 property and that Jerry, for reasons that are not clear in the record, simply had an aversion to titling properties in his name. Cynthia and Jerry, using their own funds, made a number of improvements on the 915 property while they lived there.
Jerry Wayne for the most part did not live at the 915 property. In 1993, Jerry Wayne purchased from his uncle a parcel of land near the 915 property, located in Petersburg at 943 W. County Road 50 S. (“the 943 property”), and constructed a house on it.
In 2001, Jerry Wayne was having financial difficulties and was facing foreclosure on the 943 property. At the same time, Jerry's sister, Joyce Buckley, was facing foreclosure on a residence she owned that was located in Petersburg at 962 W. County Road 125 S. (“the 962 property”). At this time, Cynthia's nephew, Shane Myles, offered to purchase the 915 property, and Jerry Wayne agreed to the sale.
There is much contradictory evidence surrounding the sale of the 915 property and purchase of the 962 property. The settlement statement for the 915 property sale lists Jerry Wayne only as the seller. Some of the sale proceeds were used to pay off an existing loan on the 915 property. Several thousand dollars went toward what is listed on the statement as a federal tax lien; Jerry Wayne insists that the statement is erroneous and that this was actually a student loan of his, while Cynthia insists that Jerry paid off the student loan before closing. Approximately $29,000 of the proceeds of the 915 sale were used to pay off Joyce's loan on the 962 property. Finally, Jerry Wayne received nearly $11,000 of the remaining funds from the sale of the 915 property. Jerry Wayne asserts that he agreed to pay this $11,000 directly to Joyce at Jerry's request in order to alleviate her financial troubles. Cynthia asserts that Jerry had to promise Jerry Wayne that he would receive $10,000 after closing in order to get him to agree to the sale of the 915 property, but that Jerry Wayne immediately signed over the closing check to Jerry.
The 2001 deed for the 915 property lists Jerry Wayne as the sole grantor. Because of the sale of the 915 property, Jerry and Cynthia moved into the 962 property. Jerry Wayne states that he did not want his name on the deed for the 962 property because of the possibility that it could be attached in connection with the foreclosure proceedings on the 943 property. In any event, it is undisputed that Jerry called Abram and asked if he would be willing to have his name placed on the deed for the 962 property, and Abram agreed. Jerry Wayne claims Jerry called Abram at Jerry Wayne's insistence. Abram was the sole grantee on the 2001 deed for the 962 property. Cynthia had no discussions with Abram before his name was placed on the 962 property deed, but Jerry had told her that Abram would never kick her out of the house.
After moving into the 962 property, Jerry and Cynthia used their own funds to make a number of improvements to the property. None of these improvements were discussed with Jerry Wayne or Abram beforehand. As with the 915 property, Jerry and Cynthia paid no rent to live there, although Jerry did pay the property taxes. Also as with the 915 property, Cynthia believed that the 962 property actually belonged to her and Jerry, despite the lack of any documentary evidence to that effect.
Jerry died in September 2006. Shortly after his death, Abram told Cynthia that the 962 property was hers. However, within a few weeks after Jerry's death, Jerry Wayne and Abram told Cynthia that she needed to make preparations to move elsewhere. Cynthia did move out of the 962 property in November 2006 and moved in with her parents. After doing so, she began removing fixtures, such as cabinets, from the 962 property. In early 2007, Jerry Wayne and Abram filed a notice to evict Cynthia from the premises. A sheriff's deputy was present when Cynthia subsequently removed her remaining belongings from the 962 property. Additionally, Abram deeded the 962 property to Rhonda sometime during 2007.
On November 7, 2007, Cynthia filed a multi-count complaint against the Colemans. Count I was an ejectment and quiet title action with respect to the 962 property; Count II sought replevin with respect to some personal property at the 962 property that she claims was not returned to her; Count III alleged the Colemans were unjustly enriched by taking the 962 property and related personal property; Count IV alleged promissory estoppel, i.e. that Cynthia was entitled to remain at the 962 property because of promises made by the Colemans; Count V alleged theft of both the 962 property and related personal property, and sought treble damages and attorney fees; Count VI alleged conversion; and Count VII alleged fraud.
The independent fraud count was dismissed before trial.3 A jury trial commenced on July 7, 2010. During trial, Cynthia presented appraisal evidence valuing the 962 property at between $40,000 and $65,000. She also sought up to $125,000 with respect to improvements made to the 962 property.4 Ultimately, the jury found in Cynthia's favor on the unjust enrichment count and awarded her $20,000 in damages. It also found in Cynthia's favor on the replevin count with respect to a stove and an antique picture. It found in favor of the Colemans on the promissory estoppel and conversion counts. With respect to the theft count, the jury originally returned a verdict finding in favor of the Colemans, but awarding Cynthia attorney fees in the amount of $14,465.73. The jury foreperson informed the trial court that the jury did not believe the Colemans had committed theft. The trial court then asked the jury to re-read its instructions and return a different verdict for theft, stating that the verdict was defective. After re-deliberating, the jury returned a verdict in favor of Cynthia on the theft count, but awarded her no damages, and again awarded her attorney fees. The trial court subsequently reduced the amount of the fees to $11,097.
The ejectment and quiet title claim was argued to the jury during opening arguments; the Colemans also moved for a directed verdict on that claim after Cynthia presented her evidence, which the trial court denied. However, for reasons that are not clear, that claim was not submitted to the jury for consideration. The Colemans assert that after trial, the trial court judge stated in chambers that he was going to enter judgment in their favor on that claim; Cynthia does not dispute this assertion. However, no judgment on the ejectment and quiet title claim has ever been entered on the record.
The trial court entered judgment on the jury verdicts. The Colemans filed a motion to correct error, which the trial court denied. They now appeal. 5
Before addressing the merits of this appeal, we pause to note that this is not an appeal from a final judgment, although the Colemans asserted that it was in their notice of appeal. There has not as yet been a disposition of Cynthia's ejectment/quiet title claim. Thus, there has not been a disposition of all issues as to all parties, which is the definition of a final judgment. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003) (citing Ind. Appellate Rule 2(H)). Additionally, the trial court did not certify its partial judgment as final under Indiana Trial Rule 54(B). Ordinarily, appellate courts lack subject matter jurisdiction to entertain appeals from non-final rulings. See id.
However, Indiana Appellate Rule 14(A)(1) permits interlocutory appeals as of right from any order for the payment of money. Here, the trial court...
To continue reading
Request your trial
-
Doermer v. Callen
...making restitution. Woodruff v. Indiana Family & Social Servs. Admin., 964 N.E.2d 784, 791 (Ind. 2012) ; see also Coleman v. Coleman, 949 N.E.2d 860, 867 (Ind. App. 2011) ("We [have] noted that ‘relief will be denied if the plaintiff did not contemplate a fee in consideration of the benefit......
-
Marquette Bank v. Brown
...the defendant impliedly or expressly requested." See Morris v. Crain, 969 N.E.2d 119, 124 (Ind. Ct. App. 2012); Coleman v. Coleman, 949 N.E.2d 860, 867 (Ind. Ct. App. 2011). In light of the fact that valid Indiana case law has allowed recovery against "innocent" parties—without discussing w......
-
Bank v. Huizar
...as a result of a defendant's actions, the plaintiff is not entitled to recover attorney's fees under the CVRA. Coleman v. Coleman , 949 N.E.2d 860, 869 (Ind. Ct. App. 2011). In Coleman, we explained:The statute explicitly refers to "pecuniary loss" as the necessary prerequisite for an award......
-
Mizen v. State ex rel. Zoeller
...and other costs under the CVRA because it has not suffered a "pecuniary loss." (Appellant's Br. p. 27).See Coleman v. Coleman , 949 N.E.2d 860, 869 (Ind. Ct. App. 2011) ("[I]f a plaintiff suffers no pecuniary loss as the result of a defendant's actions, the plaintiff is not entitled to reco......