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 

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MEMORANDUM DECISION - NOT FOR PUBLICATION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 

2
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.

1

 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.

3

 
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 

4
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) 

5
(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 

6
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, 

7
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 

8
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. 

9
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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