Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019 Page 1 of 10

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT1

William N. Ivers 

Stephen J. Peters

David I. Rubin

Plunkett Cooney, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Clinton E. Blanck

Clifford T. Rubenstein

Blanck & Rubenstein, P.C.

Carmel, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Theresa Dukes,

Appellant-Defendant/Counterclaimant,

v.

Richard T. Mohr,

Appellee-Plaintiff/Counter-defendant,

and 

John R. Mohr,

Appellee-Third-Party Defendant,

January 31, 2019

Court of Appeals Case No.

18A-PL-656

Appeal from the Marion Superior 

Court 

The Honorable Timothy W. 

Oakes, Judge

Trial Court Cause No.

49D02-1709-PL-34211

 

1 On January 31, 2019, this Court granted the motions of Mr. Ivers, Mr. Peters, and Mr. Rubin to withdraw. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019 Page 2 of 10

Mathias, Judge.

[1] The Marion Superior Court issued an order granting prejudgment possession of 

a property to Richard Mohr that Mohr owns and Theresa Dukes (“Dukes”)

leases. Dukes appeals and argues that the trial court’s order does not meet the 

express requirements of the Ejectment Statute, and that the trial court 

improperly calculated the bond amount she was required to post to maintain 

possession of the property.

[2] We affirm the trial court’s order, but remand with instructions to recalculate 

Dukes’s bond.

Facts and Procedural History

[3] In November 2014, Dukes began renting a duplex in Indianapolis from Richard 

Mohr. John Mohr, Richard’s father, acted as Richard’s agent for the purpose of 

leasing the property.

2 Dukes expressed interest in eventually purchasing the 

property. Therefore, pursuant to the terms of the lease agreement, Mohr agreed 

to give Dukes a “right of first refusal” to purchase the property if Mohr received 

an offer to purchase from another party. Appellant’s App. p. 30.

[4] Dukes and Mohr entered into four extensions of the initial lease. The lease 

addendums included the terms governing Dukes’s right of first refusal. On June 

21, 2017, approximately forty days before expiration of the fourth lease 

 

2 Richard and John are referred to collectively throughout this opinion as Mohr.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019 Page 3 of 10

extension, Mohr sent Dukes a letter stating their intention to sell the property. 

Mohr informed Dukes that she could purchase the property for $82,000. Dukes 

did not believe the property was worth that amount based on the sale of the 

adjoining duplex and certain existing defects. Therefore, she did not accept 

Mohr’s offer to sell the property to her for $82,000. 

[5] Dukes refused to vacate the property on July 31, 2017, the date the fourth lease 

extension ended. Approximately five days later, Mohr filed eviction 

proceedings in small claims court. Dukes appealed the small claims judgment

against her, and the Marion Superior Court assumed jurisdiction over the case. 

On September 29, 2017, Mohr filed a “Verified Replead Complaint” against 

Dukes requesting immediate possession of the premises and damages. In her 

answer and counterclaim, Dukes alleged that she was not served with notice of 

the eviction proceedings filed in small claims court. Dukes also requested

damages, possession of the property, and argued that Mohr breached his

agreement to sell the property to her.

[6] Mohr filed a request for prejudgment possession of the property, and the trial 

court held a hearing on the motion on February 20, 2018. The trial court 

granted Mohr’s motion and determined that he would be required to post a 

bond in the amount of $5,000. One week later, the trial court issued the 

following order: 

1. Having considered the pleadings, evidence, and testimony 

presented by all parties present, the Court determines with 

reasonable probability that Plaintiff Richard T. Mohr 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019 Page 4 of 10

(“Landlord”), is entitled to pre-judgment possession, use, and 

enjoyment of the property located at 1307 Norfolk Circle, 

Indianapolis, IN 46224 (“Leased Premises”). 

2. Therefore, on or before March 18, 2018 at 5:00 p.m., Tenant, 

or any such person claiming under or through Tenant, in 

possession of Leased Premises, shall PEACEABLY 

SURRENDER to Landlord and VACATE the Leased Premises 

as described and set forth in the Lease Agreement attached to the 

Complaint and hereby incorporated by reference herein, . . . 

***

5. Before the Landlord may recover possession, pursuant to I.C. 

32-30-3-6, the Landlord shall file with this Court a written 

undertaking in the amount of Five Thousand Dollars ($5,000.00), 

executed by a surety approved by the Court. 

6. Pursuant to I.C. 32-30-3-7, once the Landlord files his written 

undertaking, Tenant shall have the right (a) to except to the 

Landlord’s surety, or (b) to file a written undertaking for the 

repossession of the Leased Premises.

[Choose 7A or 7B]

7A. Pursuant to I.C. 32-30-3-8, in order to maintain possession of 

the Leased Premises, after the Landlord files his undertaking, 

Tenant may file with the Court her written undertaking signed by 

a surety approved by the Court in the amount of $29,750.00, 

which amount is determined by the Court that is sufficient to 

assure the payment of costs assessed against the Tenant for the 

wrongful detention of the Leased Premises. Such undertaking 

shall be filed with the Court on or before March 18, 2018 at 5:00 

p.m. Such amount has been determined by the Court as the total 
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of (a) past due rent from August 2017–February 2018, (b) 

continuing rent from March 1, 2018 through the end of this case, 

which will be tried by a jury trial, (c) Landlord’s attorney fees 

through the date of this Order, (d) Landlord’s attorney fees 

through the end of this case, (e) late fees and (f) real estate taxes, 

insurance and repair expenses through the end of this case . . .

7B. Pursuant to I.C. 32-30-3-8, in order to maintain possession of 

the Leased Premises, after the Landlord files his undertaking, 

Tenant may file with the Court her written undertaking signed by 

a surety approved by the Court in the amount of $15,000.00, 

which amount is determined by the Court that is sufficient to 

assure the payment of costs assessed against the Tenant for the 

wrongful detention of the Leased Premises. Such undertaking 

shall be filed with the Court on or before March 18, 2018 at 5:00 

p.m. Such amount has been determined by the Court as a total of 

(a) past due rent from August 2017–February 2018, (b) 

Landlord’s attorney fees through the date of this Order, (c) 

Landlord’s attorney fees through the end of this case. . . . In 

addition to filing the written undertaking in the amount of 

$15,000.00, until a final judgment of this Court on possession, 

the lease shall continue pursuant to Paragraph 21 of the lease 

which provides that as a holdover tenant, the lease shall be 

extended on a month-to-month basis under the same terms in the 

lease except that Tenant’s monthly rent shall be $825.00 per 

month. Beginning March 1, 2018 and continuing on the first day 

of each month thereafter until a final Court decision[], Tenant 

shall pay to Landlord the monthly rent of $825.00 in accordance 

with the terms of the lease.

Appellant’s App. pp. 11–13. Dukes now appeals.3

 

3 On Mohr’s motion, the trial court suspended the March 18, 2018 deadline for Dukes to surrender and 

vacate the leased premises “until further order of the Court.” Appellant’s App. pp. 164–65.
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The Ejectment Statute

[7] Dukes argues that the trial court erred when it granted Mohr prejudgment 

possession of the property before requiring him to post a “proper bond.” 

Appellant’s Br. at 14–15. Mohr agrees that the trial court’s order “lays out a 

sequence of events different from that suggested by the Ejectment Statute,” but 

the court’s order does not award him immediate possession of the property 

without posting a bond. Appellees’ Br. at 8. Therefore, Mohr argues that Dukes 

was not prejudiced by the trial court’s failure to follow the precise language of 

the ejectment statute.

[8] “Ejectment is an action to restore possession of property to the person entitled 

to it.” Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008) (citing BLACK’S 

LAW DICTIONARY 516 (6th ed. 1990)). The trial court may issue a 

prejudgment order of possession after holding a hearing, considering the 

pleadings, evidence, and testimony presented at the hearing, and determining 

“with reasonable probability which party is entitled to possession, use, and 

enjoyment of the property.” Ind. Code § 32-30-3-5(a). However, 

A court may not issue an order of possession in favor of a 

plaintiff other than an order of final judgment until the plaintiff 

has filed with the court a written undertaking in an amount fixed 

by the court and executed by a surety to be approved by the court 

binding the plaintiff to the defendant in an amount sufficient to 

assure the payment of any damages the defendant may suffer if 

the court wrongfully ordered possession of the property to the 

plaintiff.

Ind. Code § 32-30-3-6.
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[9] The next section establishes the contents of the order of possession for the 

property at issue. Specifically, section 32-30-3-7 provides:

The court shall direct the order of possession to the sheriff or 

other officer charged with executing the order and within whose 

jurisdiction the property is located. The order of possession must:

(1) describe the property;

(2) direct the executing officer to:

(A) seize possession of the property unless the court issued 

the order without notice to the parties; and

(B) if the defendant has not filed a written undertaking as 

provided in section 8 of this chapter, put the plaintiff in 

possession of the property by removing the defendant and 

the defendant’s personal property from the property;

(3) have attached a copy of any written undertaking filed by the 

plaintiff under section 6 of this chapter; and

(4) inform the defendant of the right to except to the surety upon 

the plaintiff’s undertaking or to file a written undertaking for the 

repossession of the property as provided in section 8 of this 

chapter.

[10] Finally, section 8 provides a mechanism for the defendant to maintain or return 

to possession of the property. 

(a) Before the hearing on the order to show cause or before final 

judgment, and within the time fixed in the order of possession, 

the defendant may require the return of possession of the 

property by filing with the court a written undertaking executed 

by a surety to be approved by the court stating that the defendant 

is bound in an amount determined by the court sufficient to 
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assure the payment of costs assessed against the defendant for the 

wrongful detention of the property.

(b) If a defendant files an undertaking under this section, the 

defendant shall:

(1) serve a notice of filing the undertaking on the executing 

officer and the plaintiff or the plaintiff’s attorney; and

(2) file with the court proof of service of the notice of filing 

the undertaking.

(c) If a defendant files an undertaking before the hearing on the 

order to show cause, the court shall terminate the hearing unless 

the plaintiff takes exception to the surety.

(d) If the property is in the possession of the executing officer 

when the defendant files the undertaking, the court shall return 

possession of the property to the defendant not more than five (5) 

days after service of notice of the filing of the undertaking on the 

plaintiff or the plaintiff’s attorney.

Ind. Code § 32-30-3-8.

[11] The trial court’s order awarded possession to Mohr before he had posted the 

bond contrary to Indiana Code section 32-30-3-6. However, pursuant to 

paragraph number 5 of the trial court’s order, Mohr was required to post a 

proper bond before he was entitled to prejudgment possession of the property.

Appellant’s App. p. 12. Therefore, Mohr was required to file his bond before 

they could claim possession of the property on March 18, 2018.

[12] Dukes contends that allowing the trial court to award possession to the plaintiff 

before he or she posts the appropriate bond “could effectively circumvent the 

other protections of the Ejectment Statute, which favor continued possession by 
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the defendant.” Reply Br. at 8. However, Dukes does not claim that she was 

specifically harmed by the trial court’s failure to require Mohr to post a bond 

before awarding prejudgment possession of the property to them. And Dukes 

was provided with the opportunity to object to and present evidence opposing 

Mohr’s request for prejudgment possession of the property. For these reasons, 

we agree with Mohr that “the protections of the statute are still present and the 

end result” occurred as prescribed by the Ejectment Statute. See Appellees’ Br. 

at 8.

Calculation of the Bond

[13] Dukes also argues that the trial court erred when it calculated her bond amount, 

and Mohr agrees that the calculation is incorrect.4 The trial court’s calculation 

of Dukes’s bond amount included Mohr’s damages in the event that the court 

ultimately determines that Dukes was in wrongful possession of the property. 

However, Indiana Code section 32-30-3-8 provides that the defendant’s bond is 

an “amount determined by the court sufficient to assure the payment of costs 

assessed against the defendant for the wrongful detention of the property.” 

(Emphasis added). The statute does not include the plaintiff’s damages in the 

calculation of the defendant’s bond amount.

 

4 Dukes also complains that the trial court improperly calculated Mohr’s bond amount, but she does not 

support her claim with cogent argument, and therefore, the issue is waived. Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-656 | January 31, 2019 Page 10 of 10

[14] Mohr agrees that Dukes was ordered to pay one of two bond amounts, i.e. 

either $29,750.00 or $15,000.00, that “are more akin to damages suffered” than 

an amount sufficient to assure the payment of costs. See Appellees’ Br. at 9; I.C. 

§ 32-30-3-8. Mohr concurs that the trial court considered potential damages 

suffered including attorney fees when it set Dukes’s alternative bond amounts.

Appellant’s App. pp. 12–13; see also R.L. Turner Corp. v. Town of Brownsburg, 963 

N.E.2d 453, 458 (Ind. 2012) (explaining that “costs” is a term of art that does 

not include attorney fees). We therefore remand this case to the trial court with 

instructions to determine a proper bond amount under Indiana Code section 

32-30-3-8 that Dukes must post to remain in possession of the property.

Conclusion

[15] Although the trial court failed to follow the precise statutory framework of the 

Ejectment Statute when it issued the order in this case, Dukes was not harmed

by the court’s order awarding prejudgment possession to Mohr before he posted 

bond. However, the trial court erred in its calculation of the bond amount 

Dukes must post to retain possession of the property. We therefore remand this 

case to the trial court for a proper calculation of Dukes bond under Indiana 

Code section 32-30-3-8.

[16] Affirmed and remanded in part for proceedings not inconsistent with this 

opinion. 

Bailey, J., and Bradford, J., concur.