Dominiack Mechanical, Inc. v. Dunbar

• Citation: 757 N.E.2d 186
• Decision Date: 22 October 2001
• Docket Number: No. 71A03-0012-CV-455.,71A03-0012-CV-455.
• Parties: DOMINIACK MECHANICAL, INC. and Jerry Dominiack, Appellants-Plaintiffs, v. Sheila H. DUNBAR, Angie Binion, Jarvis Edison, Lee Becton, Ray Zellars, Allen Rossum, Jimmy Young, Bobby Taylor, Tracy Graham, Willa Zellars, Tommy Myles, Eric Chappell, Ivory Covington, James Clay, Darlene Clay, Ron Thomas, Lori Thomas, Becca Dalton, Ryan Gee, Ann Holm, Jay Holm, Bobby Howard, Rich Kizer, Lee Lafayette, Raki Nelson, Cyrus Edison, Samarra Edison, Rolondo Mario and Jacalyn Mario, Appellees-Defendants.
• Court: Court of Appeals of Indiana

757 N.E.2d 186

DOMINIACK MECHANICAL, INC. and Jerry Dominiack, Appellants-Plaintiffs, v. Sheila H. DUNBAR, Angie Binion, Jarvis Edison, Lee Becton, Ray Zellars, Allen Rossum, Jimmy Young, Bobby Taylor, Tracy Graham, Willa Zellars, Tommy Myles, Eric Chappell, Ivory Covington, James Clay, Darlene Clay, Ron Thomas, Lori Thomas, Becca Dalton, Ryan Gee, Ann Holm, Jay Holm, Bobby Howard, Rich Kizer, Lee Lafayette, Raki Nelson, Cyrus Edison, Samarra Edison, Rolondo Mario and Jacalyn Mario, Appellees-Defendants.

No. 71A03-0012-CV-455.

Court of Appeals of Indiana.

October 22, 2001.

R. William Jonas, Jr., Hammerschmidt, Amaral & Jonas, South Bend, IN, Attorney for Appellants.

OPINION

SULLIVAN, Judge.

Appellants, Dominiack Mechanical, Inc. and Jerry Dominiack (collectively "Dominiack"), challenge the trial court's dismissal of Count II of their second amended complaint against appellees Becca Dalton, Ryan Gee, and Rich Kizer.

We affirm in part, reverse in part, and remand.

On January 17, 2000, Dominiack filed a second amended complaint against the appellees. Count II of this complaint reads as follows:

"For their complaint against the Defendants... Becca Dalton, Ryan Gee, [and] Rich Kizer ... the Plaintiffs say:

1. In January, 1998, Kimberly Dunbar organized a trip to a Chicago Bulls game; she rented a skybox, had food and drinks catered to the party, and provided transportation for persons attending the party.

2. The cost of the skybox party was in excess of $20,000.00; the party was paid for with funds embezzled by Kimberly Dunbar from the plaintiffs.

3. The Defendants named in this count attended the party and have refused, despite demand, to return to Plaintiffs their pro-rata share of funds for the party.

4. Each of the following is responsible under the theories of civil conversion and unjust enrichment to pay to Plaintiffs the amount listed after his or her name as their share of the cost of the party:

* * * c. Becca Dalton $1,111.11 d. Ryan Gee $1,111.11 * * * g. Rich Kizer $1,111.11 * * *

WHEREFORE, Plaintiffs pray judgment against the Defendants, individually, in the amounts set out above.... Plaintiffs request all other just and proper relief under Indiana law." Record at 17-18.

On April 24, 2000, Dalton, Gee, and Kizer filed a motion to dismiss Count II of Dominiack's complaint pursuant to Indiana Trial Rule 12(B)(6), along with a memorandum in support thereof. On September 20, 2000, Dominiack filed a memorandum in opposition to the motion to dismiss, and Dalton, Gee, and Kizer filed a reply memorandum in support of their motion to dismiss on October 6, 2000. Thereafter, on October 19, 2000, the trial court granted Dalton, Gee, and Kizer's motion to dismiss Count II of Dominiack's complaint with prejudice. Dominiack then filed a motion to certify the trial court's order for interlocutory appeal on November 20, 2000. On November 29, 2000, the trial court entered an amended order of dismissal, wherein it entered judgment upon Count II in favor of Dalton, Gee, and Kizer. It is from this judgment that Dominiack appeals.

Dominiack claims that the trial court erred when it dismissed Count II of the complaint because, according to Dominiack, the complaint adequately states causes of action for unjust enrichment and conversion. Our review of a dismissal under T.R. 12(B)(6) is de novo, and no deference to the trial court's decision is required. Wilhoite v. Melvin Simon & Assoc., Inc., 640 N.E.2d 382, 384 (Ind.Ct. App.1994). A motion to dismiss based upon T.R. 12(B)(6) tests the legal sufficiency of a claim, not the facts supporting it. Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind.Ct.App. 1999), reh'g denied, trans. denied. We must determine whether the complaint states any facts upon which the trial court could have granted relief, viewing the complaint in the light most favorable to the non-moving party. Id. In determining whether any facts will support the claim, we may look only to the complaint and the reasonable inferences to be drawn therefrom, and may not resort to any other evidence in the record. Wilhoite, 640 N.E.2d at 384; Hosler, 710 N.E.2d at 196. A motion to dismiss is properly granted only when the allegations present no possible set of facts upon which the plaintiff could recover. Indiana Gaming Co., L.P. v. Blevins, 724 N.E.2d 274, 277 (Ind.Ct. App.2000), trans. denied. If a complaint states a set of facts which, even if true, would not support the relief requested therein, we will affirm the dismissal.¹ Hosler, 710 N.E.2d at 196.

I Conversion

Dominiack claims that Count II of the complaint properly sets forth a claim for conversion of his property. Indiana courts have long defined the tort of conversion² as:

"the appropriation of the personal property of another to the party's own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession under a claim and title inconsistent with the owner's." Hunter v. Cronkhite, 9 Ind.App. 470, 471, 36 N.E. 924, 925 (1894) (quoting 4 AM. & ENG. ENC. LAW, 108);

accord Prudential Ins. Co. of America v. Thatcher, 104 Ind.App. 14, 20, 4 N.E.2d 574, 577 (1936), trans. denied; Computers Unlimited, Inc. v. Midwest Data Systems, Inc., 657 N.E.2d 165, 171 (Ind.Ct.App. 1995).

Dominiack acknowledges that the complaint against Dalton, Gee, and Kizer contains no allegation that these defendants individually "appropriated" Dominiack's property. Appellant's Brief at 6. Nevertheless, Dominiack claims that by alleging that Ms. Dunbar embezzled funds, it has alleged the "appropriation" necessary to state a claim against Dalton, Gee, and Kizer. In support of this position, Dominiack cites National Fleet Supply, Inc. v. Fairchild, 450 N.E.2d 1015, 1019 (Ind.Ct. App.1983), abrogated on other grounds by Mitchell v. Mitchell, 695 N.E.2d 920 (Ind. 1998),

in which the court said, "To constitute the tort of conversion there must be an appropriation of the personal property of another." (emphasis supplied). Dominiack claims that Dalton, Gee, and Kizer may be liable in conversion because Ms. Dunbar appropriated funds from Dominiack and used these funds for the benefit of Dalton, Gee, and Kizer. We do not agree.

As noted above, the more complete definition of tortious conversion requires an "appropriation of the personal property of another to the party's own use and benefit." Hunter, 9 Ind.App. at 471, 36 N.E. at 925. (emphasis supplied). Indeed, the verb "appropriate" has been defined as "take to oneself as one's own property or for one's own use." THE NEW SHORTER OXFORD ENGLISH DICTIONARY 103 (4th ed.1993). Thus, the appropriation alleged must necessarily be an appropriation by the party alleged to have converted the property.³ Nevertheless, Dominiack notes that, pursuant to the definition set forth in Hunter, conversion may also consist of the destruction of the personal property of another or exercising dominion over the personal property of another, in exclusion and defiance of the rights of the owner or lawful possessor. 9 Ind.App. at 471, 36 N.E. at 925. Upon appeal, Dominiack claims that by attending the party hosted by Ms. Dunbar and consuming the food and drink provided by Ms. Dunbar with funds allegedly embezzled from Dominiack, Dalton, Gee, and Kizer either destroyed Dominiack's personal property or exercised dominion over it. Again, we disagree.

Even if we were to assume that the items and services allegedly purchased by Ms. Dunbar were Dominiack's personal property, Count II does not set forth any facts indicating that Dalton, Gee, or Kizer exercised dominion or control over or destroyed Dominiack's personal property, nor does the complaint give rise to any reasonable inferences to that effect. Dalton, Gee, and Kizer are alleged to have merely attended a party. Indeed, Count II specifically states that it was Ms. Dunbar who organized the trip to the basketball game, rented the skybox, had the party catered, and provided transportation. Thus, according to Dominiack's own complaint, it was Ms. Dunbar who exercised dominion over and "destroyed" the items and services purchased. The only allegation against Dalton, Gee, and Kizer is that they attended Ms. Dunbar's party. We refuse to say that a plaintiff may successfully state a claim of conversion by alleging only that the defendant attended a party at the invitation of an alleged embezzler. Count II does not state any set of facts which, even if true, amount to a conversion by Dalton, Gee, and Kizer. Therefore, the trial did not err in dismissing Dominiack's claim of conversion.

II Unjust Enrichment

Dominiack also claims that the trial court erred in dismissing Count II because it successfully states a claim of unjust enrichment. "To prevail on a claim of unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant's retention of the benefit without payment would be unjust." Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992). Here, the complaint alleges that Ms. Dunbar used money embezzled from Dominiack to confer a benefit upon Dalton, Gee, and Kizer. Dominiack maintains that it would be unjust if Dalton, Gee, and Kizer are not required to pay for the benefit Ms. Dunbar is alleged to have conferred upon them.

In support, Dominiack cites Paul v. I.S.I. Services, Inc., 726 N.E.2d 318 (Ind. Ct.App.2000). In Paul, the complaint alleged that the defendant's husband had embezzled money from the plaintiff. The complaint also alleged that the defendant's husband had invested a substantial portion of the ill-gotten funds in the couple's marital home and a brokerage account jointly owned by the defendant and her husband. Although there was no allegation that the defendant in Paul was complicit in...