Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 1 of 23

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.

ATTORNEY FOR APPELLANTS

Fred L. Cline

Oliver & Cline, LLP

Danville, Indiana

ATTORNEY FOR APPELLEE

Mark R. Waterfill

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

John H. Battershell and Helen A. 

Battershell,

Appellants-Defendants/CounterPlaintiffs,

v.

Stuart C. Surface,

Appellee-Plaintiff/Counter-Defendant.

October 4, 2018

Court of Appeals Case No.

32A01-1708-CC-1989

Appeal from the Hendricks

Superior Court

The Honorable Mark A. Smith, 

Judge

Trial Court Cause No.

32D04-1312-CC-1270

Mathias, Judge.

[1] Stuart Surface (“Surface”) filed a complaint in Hendricks Superior Court 

against John and Helen Battershell (collectively “the Battershells”) alleging that 

the Battershells breached their lease agreement with Surface. The Battershells 
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counterclaimed and alleged that Surface breached the lease agreement. The trial 

court initially granted summary judgment to the Battershells but later set aside 

its judgment. After a bench trial, the court determined that the Battershells 

breached the lease agreement. However, the court concluded that Surface failed 

to prove damages, and therefore, entered a zero-damage award but ordered the 

Battershells to pay Surface’s attorney fees in the amount of $37,312.22. 

[2] The Battershells appeal and raise several issues, which we restate as:

I. Whether the trial court abused its discretion when it set aside its 

order entering summary judgment in the Battershells’ favor;

II. Whether the trial court erred when it concluded that Surface did not 

breach the lease agreement;

III. Whether the trial court erred when it concluded that the Battershells 

converted Surface’s personal property; and,

IV. Whether the trial court erred when it awarded attorney fees to 

Surface.

Surface cross-appeals and raises two arguments, which we restate as:

I. Whether the trial court erred when it concluded that Surface failed to 

prove damages for the converted personal property; and,

II. Whether the trial court abused its discretion when it awarded Surface 

less than the amount he requested in attorney fees.

[3] We affirm in part, reverse in part, and remand for proceedings consistent with 

this opinion.

Facts and Procedural History

[4] The Battershells own commercial real estate located at 258 Meadow Drive in 

Danville, Indiana. Surface, who is a real estate agent and a member and 
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manager of a property renovation company, began renting commercial property 

from the Battershells in 2008. In 2013, Surface wanted to increase the size of his 

office space. Therefore, the parties agreed to lease terms for the larger Meadow 

Drive property. 

[5] Surface requested certain improvements and modifications to his new office 

space. The parties agreed that the Battershells would initially pay for the 

improvements, but that total cost of improvements would be amortized over the 

life of the ten-year lease. Surface agreed to pay rent in the amount of $1,310.56 

per month.

[6] In May 2013, the parties executed the lease agreement. The lease agreement 

provided that Surface was required to purchase liability and casualty insurance 

naming both parties as the insureds. Surface gave the Battershells a copy of the 

required certificate of insurance. However, the Battershells were not named as 

insureds. In August 2013, the Battershells sent Surface a letter asking him to 

provide a certificate of insurance naming them as insureds as required by the 

lease agreement. But the letter did not specifically declare that Surface had 

breached the lease agreement.

[7] Also, on December 13, 2013, Surface attempted to pay his rent due on 

December 15, but the Battershells’ office was locked. Therefore, the Battershells 

did not receive the lease payment until December 16, 2013. The lease 

agreement provided that if Surface failed to pay rent for ten days after its due 

date, the Battershells had the right to re-enter the premises and take possession. 
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[8] The Battershells assumed that Surface intended to vacate the property because 

certain furniture was missing. Surface had moved certain property and furniture 

that was previously affixed to the premises1to another location. Surface never 

informed the Battershells that he intended to move out of the property. 

[9] On December 16, 2013, one day after his rent was due and without notifying 

Surface, the Battershells changed the locks on the Meadow Drive property. 

Therefore, Surface was unable to access his personal property located on the 

premises and was deprived of use of the premises.

[10] On December 18, 2013, Surface sent a letter to the Battershells stating that the 

Battershells had breached the lease agreement by denying him access to the 

leased property. Surface also requested the return of certain personal property 

left on the premises. Surface received some, but not all, of the personal property 

that was stored in his office. The property that was not returned to him were 

items of sentimental value that belonged to his deceased mother.

[11] On December 27, 2013, Surface filed a complaint against the Battershells 

alleging breach of contract and asserting claims for replevin and conversion. 

The Battershells counterclaimed also arguing breach of contract, theft and 

conversion. 

 

1

Surface purchased and paid for the assembly and installation of office furniture and storage units.
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[12] In December 2014, after Surface’s attorney withdrew and Surface failed to 

respond to certain discovery requests, including requests for admissions, the 

Battershells moved for summary judgment. Surface failed to respond to the 

motion, and the trial court granted summary judgment to the Battershells on 

January 30, 2015.

[13] On April 24, 2015, Surface filed a motion for relief from judgment and a 

motion to withdraw deemed admissions. A hearing was held on the motions, 

and on August 14, 2015, the trial court set aside the summary judgment order 

and the deemed admissions.2

[14] A bench trial was held on May 16, 2017. And on June 20, 2017, the trial court 

issued findings of fact and conclusions of law. In pertinent part, the trial court 

concluded that

2. The Lease between Surface and [Battershell] is not ambiguous. 

Under the unambiguous language of the Lease, Battershell was 

required to notify Surface of any alleged breach and to allow 

Surface to correct the breach in twenty (20) days. 

3. At the time that Battershell changed the locks and locked 

Surface out of the Leased Premises, Battershell breached the 

Lease and violated Indiana law.

 

2 The Battershells filed a motion requesting the trial court certify its order granting Surface’s Trial Rule 60(B) 

motion for interlocutory appeal. The trial court denied the Battershells’ motion. Appellants’ App. p. 8.
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4. Battershell committed an act of conversion of Surface’s 

personal items in violation of Ind. Code § 35-43-4-3(a).

Appellants’ App. p. 19.

[15] However, the trial court also found that Surface failed to prove the value of the 

converted personal items. Consequently, he was “not entitled to recover any 

damages for the converted property not returned.” Id. Yet, the trial court also 

concluded that Surface was entitled to attorney fees pursuant to Indiana Code 

section 34-24-3-1 in the amount of $37,312.22. This amount is significantly less 

than the $97,912.47 in fees that Surface requested.

[16] The Battershells appeal the trial court’s order setting aside the summary 

judgment entered in their favor and the trial court’s judgment in favor of 

Surface. Surface cross-appeals arguing that he should have been awarded 

damages for the sentimental value of his personal property.

Standard of Review

[17] At the conclusion of the bench trial, the trial court entered findings of fact and 

conclusions of law pursuant to Indiana Trial Rule 52.

The findings or judgment are not to be set aside unless clearly 

erroneous, and we give due regard to the trial court's ability to 

assess the credibility of witnesses. On review, we first consider 

whether the evidence supports the factual findings and then 

consider whether the findings support the judgment. Further, 

“while we defer substantially to findings of fact, we do not do so 

to conclusions of law.” 
Court of Appeals of Indiana | Memorandum Decision 32A01-1708-CC-1989 | October 4, 2018 Page 7 of 23

WindGate Properties, LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App. 2018) 

(quoting Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000)).

I. The Trial Court’s Order Setting Aside Summary Judgment

[18] The trial court initially entered summary judgment in favor of the Battershells 

after Surface failed to respond to the motion. Approximately three months later, 

Surface filed a motion for relief from judgment pursuant to Trial Rule 60(B)(1) 

and (8), which provides in pertinent part:

On motion and upon such terms as are just the court may relieve 

a party or his legal representative from a judgment, including a 

judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(8) any reason justifying relief from the operation of the 

judgment, other than those reasons set forth in sub-paragraphs 

(1), (2), (3), and (4).

A movant alleging mistake, surprise, or excusable neglect “must allege a 

meritorious claim or defense.” T.R. 60(B). 

[19] The trial court concluded that Surface met his burden of proving that he was 

entitled to relief under Trial Rule 60(B). See id. The Battershells appeal and 

argue that the trial court abused its discretion when it granted relief to Surface 

because they presented evidence that Surface was aware of filings in the case 

and that he understood that a response to their summary judgment motion was 

required. 
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[20] Relief under Trial Rule 60(B) is “an equitable remedy within the trial court’s 

discretion,” and we “review a trial court’s Rule 60 ruling only for abuse of 

discretion.” In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). “The trial 

court’s discretion is necessarily broad in this area because any determination of 

excusable neglect, surprise, or mistake must turn upon the unique factual 

background of each case[.]” Huntington Nat’l Bank v. Car-X Assoc. Corp., 39 

N.E.3d 652, 655 (Ind. 2015) (citation omitted). And when we review a trial 

court’s decision to grant or deny a Trial Rule 60 (B) motion, we do not reweigh 

the evidence or substitute our judgment for that of the trial court. Id.

[21] Default judgment “plays an important role in the maintenance of an orderly, 

efficient judicial system as a weapon for enforcing compliance with the rules of 

procedure and for facilitating the speedy determination of litigation[.]” Charnas 

v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005). However, “in 

Indiana there is a marked judicial deference for deciding disputes on their 

merits and for giving parties their day in court[.]” Id. And any doubt as to the 

propriety of a default judgment must be resolved in favor of the defaulted party. 

Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind. 2001).

[22] There is no general rule as to what constitutes excusable neglect under Trial 

Rule 60(B). Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 310 (Ind. Ct. App. 

2012) (citing Kmart v. Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999), 

trans. denied), trans. denied. Each case must be determined on its particular facts. 

Id. Sickness of a party has been held to constitute excusable neglect. Id. (quoting 

Kmart, 719 N.E.2d at 1254).
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[23] Here, Surface’s counsel withdrew from the case in May 2014. Surface does not

dispute that he received notice of pleadings and discovery requests that the 

Battershells filed while he was unrepresented by counsel. The Battershells filed 

their motion for summary judgment on December 23, 2014. Approximately 

two weeks later, Surface sent an email to the Battershells’ attorney that stated, 

“I have retained a law firm to represent me in the Battershell matter. They will 

make their appearance this week.” Appellants’ App. p. 128. An attorney did not 

file an appearance for Surface before the response to the motion for summary 

judgment was due.

[24] One week before the summary judgment response was due, Surface was 

admitted to Fairbanks Hospital for inpatient drug treatment. Shortly thereafter, 

he was transferred to an intensive inpatient residential facility in Florida. In 

addition to his drug addiction, Surface argues he was entitled to relief from 

judgment because he was suffering from “compromised higher cerebral 

functioning of a moderate to severe degree” which impaired his general 

cognitive abilities. Id. at 136. Surface submitted to the trial court a report from 

Dr. Donald Layton, a licensed psychologist and neuropsychologist, who 

evaluated Surface and concluded that “current impairments reflect a clear 

decline in this patient’s higher cognitive functioning from some previous, 

probably average level given his level of education.” Id. Dr. Layton also 

concluded that given the “nature and significance of [Surface’s] impairments, 

he will require assistance with his medications, financial affairs and nutritional 

needs.” Id. 
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[25] The trial court was presented with evidence that Surface’s severe drug addiction 

and neurological and psychological impairments prevented him from actively 

participating in the proceedings. Moreover, Surface had not abandoned the 

litigation but had twice communicated with the Battershells’ attorney during 

the months he was unrepresented by counsel. Finally, Surface presented 

evidence a meritorious claim and defense as required by Trial Rule 60B(B).3 For 

these reasons, and given the unique facts of this case, we conclude that the trial 

court acted within its considerable discretion when it granted Surface’s Trial 

Rule 60(B) motion for relief from judgment.

II. Breach of the Lease Agreement

[26] The Battershells also dispute the trial court’s interpretation of the lease and its 

conclusion that Surface did not breach the parties’ lease agreement. A lease is 

construed in the same manner as any other contract. Stout v. Kokomo Manor 

Apts., 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997). The construction of the 

 

3 The Battershells argue that Surface should not have been permitted to present any evidence of a meritorious 

defense because Surface failed to respond to its motion for summary judgment and a trial court may not 

consider any response filed outside the thirty-day time limit established in Trial Rule 56. The Battershells cite 

to Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967 (Ind. 2014) in support of their argument. In that case, 

the court addressed a conflict between Trial Rules 54(B) and 56(C) and held that a trial court cannot consider 

summary judgment filings of a party after the thirty-day deadline in Rule 56(C). Id. at 973. However, in that 

same case, the supreme court explained that the Appellees were not precluded from seeking Trial Rule 60(B) 

relief from the trial court’s order granting partial summary judgment to the Appellant. Id. at 974. We cannot 

conceive of any reason our supreme court would expressly state that a party may file a Trial Rule 60(B) 

motion requesting relief from an order granting summary judgment if a party would not also be permitted to 

present evidence of a meritorious defense. But see Welton v. Midland Funding, LLC, 17 N.E.3d 353 (Ind. Ct. 

App. 2014).
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terms of a written contract is a pure question of law, which we review de novo. 

Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).

When construing the meaning of a contract, our primary task is 

to determine and effectuate the intent of the parties. First, we 

must determine whether the language of the contract is 

ambiguous. The unambiguous language of a contract is 

conclusive upon the parties to the contract and upon the courts. 

If the language of the instrument is unambiguous, the parties’

intent will be determined from the four corners of the contract. If, 

on the other hand, a contract is ambiguous, its meaning must be 

determined by examining extrinsic evidence and its construction 

is a matter for the fact-finder. . . . We read the contract as a 

whole and will attempt to construe the contractual language so as 

not to render any words, phrases, or terms ineffective or 

meaningless. We must accept an interpretation of the contract 

that harmonizes its provisions, rather than one that places the 

provisions in conflict.

Whitaker v. Brunner, 814 N.E.2d 288, 293–94 (Ind. Ct. App. 2004), trans. denied

(citations and quotation marks omitted).

[27] The lease agreement contained the following provision:

Tenant will purchase and maintain, at its own expense, public 

liability and casualty insurance naming Landlord and Tenant as 

insureds and insuring against liability for injuries to persons and 

property occurring on the real estate or within the Leased 

Premises, all with limits of liability coverage in an amount not 

less than $1,000,000.00. Tenant further agrees to purchase and 

maintain, at its own expense, content insurance, protecting 

Tenant’s personal property located within the demised premises. 

Tenant will furnish Landlord with certificates of such coverage 

within ten (10) days of commencement of this Lease.
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Appellants’ App. p. 35. The lease agreement also provided that if Surface 

breached the lease agreement and the default was not cured “within twenty (20) 

days after written notice of such breach, it shall be lawful for Landlord . . . to reenter into and upon said Leased Premises . . . and repossess the same and 

institute legal proceedings for any rent that may be due thereon.” Id. at 37. 

[28] The trial court found that under the unambiguous terms of the lease agreement, 

the Battershells were required to notify Surface of any alleged breach and allow 

him to correct the breach in twenty days. Id. at 19. The court then simply 

concluded that the Battershells were “entitled to nothing by way of its 

counterclaim.” Id.

[29] Surface obtained liability insurance and forwarded a copy of the liability

insurance to the Battershells as specified in the lease agreement. However, the 

insured was listed as Surface & Young LLC,4 and the Battershells were not 

named as additional insureds. Therefore, in August 2013, the Battershells sent 

Surface a letter asking him to “provide the required Insurance Certificate or 

provide some sort of explanation of how you intend to resolve this matter.” Id.

at 96.

 

4 The Battershells also argue that naming “Surface and Young LLC” as the insured breached the lease 

agreement because the agreement was executed between Surface, individually, and the Battershells. But 

Surface was a manager and member of that company. In any event, that Surface and Young LLC was listed 

as the insured is not outcome determinative of the issues presented in this appeal. 
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[30] The letter did not explicitly state that Surface had breached the lease agreement.

However, the letter did explain that the certificate of insurance provided by 

Surface did not comply with paragraph nine of the parties’ agreement. Yet, the 

Battershells did not demand any specific action within 20 days but only 

requested the required insurance certificate or an explanation of how Surface 

intended to resolve the matter. 

[31] Moreover, the Battershells took no other action on Surface’s failure to name the 

Battershells as insureds on the liability policy. And the Battershells continued to 

collect Surface’s rent payments and allowed him to remain in possession of the 

premises. By failing to demand that Surface produce the required insurance 

certificate within twenty days and by allowing Surface to remain in possession 

of the premises, the Battershells essentially waived that provision of the contract 

and acquiesced to Surface’s breach. White River Conserv. Dist. v. Commonwealth 

Engineers, Inc., 575 N.E.2d 1011, 1016 (Ind. Ct. App. 1991) (stating “strict 

performance of the terms of a contract on the part of one party may be waived 

by the other”), trans. denied; see also Turner v. Nationstar Mortg., LLC, 45 N.E.3d 

1257, 1263–64 (Ind. Ct. App. 2015) (“Abandonment may be inferred from the 

conduct of the parties, and a contract will be treated as abandoned when one 

party acts inconsistently with the existence of the contract, and the other party 

acquiesces.”). 

III. Conversion

[32] Next, the Battershells argue that the trial court erred when it concluded that 

they were liable for conversion. A person who knowingly or intentionally exerts 
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unauthorized control over property of another person commits criminal 

conversion. Ind. Code § 35-43-4-3. “A person engages in conduct ‘intentionally’ 

if, when he engages in the conduct, it is his conscious objective to do so.” Ind. 

Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he 

engages in the conduct, he is aware of a high probability that he is doing so.” 

Ind. Code § 35-41-2-2(b). Indiana Code section 35-43-4-1(a) provides that to 

“exert control over property” means “to obtain, take, carry, drive, lead away, 

conceal, abandon, sell, convey, encumber, or possess property, or to secure, 

transfer, or extend a right to property.” A person’s control over property of 

another person is “unauthorized” if it is exerted without the other person’s 

consent, in a manner or to an extent other than that to which the other person 

has consented, or by promising performance that the person knows will not be 

performed. See Ind. Code § 35-43-4-1-(b)(1), -(2), and -(6).

[33] Pursuant to Indiana Code section 34-24-3-1, a person who has suffered a 

pecuniary loss as a result of a criminal conversion may bring a civil action to 

recover the loss. JET Credit Union v. Loudermilk, 879 N.E.2d 594, 597 (Ind. Ct. 

App. 2008), trans. denied. If the person who suffered the pecuniary loss proves 

the elements of criminal conversion by a preponderance of the evidence, he or 

she can recover up to three times the actual damages, the costs of the action, 

and reasonable attorney’s fees. Id. at 596 n.4, 597. 

[34] The trial court found that after the Battershells locked Surface out of the 

premises, Surface did not have access to his personal property at the leased 

premises.
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25. On December 18, 2013, Surface’s counsel sent a letter to 

Battershell asserting that Battershell was in material breach of the 

Lease and demanded that Surface be allowed to return to the 

Leased Premises and to retrieve his personal property. 

26. Surface made a request for the return of all of his remaining 

personal property, including construction materials, a ninemillimeter pistol, an Xbox gaming system, a Rolex Submariner 

watch, a number of his deceased mother’s personal affects, and 

items he purchased to give his family as Christmas gifts.

27. Ultimately, at a meeting with Battershell and counsel, some 

construction materials and a nine-millimeter pistol were returned 

to Surface. However, the rest of Surface’s personal property, 

including personal items from his deceased mother, was not 

returned.

Appellants’ App. p. 18. The trial court found that the Battershells committed 

conversion by failing to return all of Surface’s personal property.

[35] The Battershells locked Surface out of the leased premises without notice and 

without giving him an opportunity to remove his personal property. Surface 

prepared an itemization of the property left in the leased premises, which was 

admitted at trial as Exhibit 11. Certain items on the list were eventually 

returned to Surface, but other items were not. Tr. p. 37.

[36] The only testimony to support the trial court’s conclusion that Surface owned 

the property in question and that it was located in the leased premises was 

Surface’s own testimony. Surface did not produce receipts or other 

documentation establishing ownership of personal property. But as the finder of 

fact, the trial court chose to credit Surface’s testimony concerning his property 

that was never returned. Surface’s testimony is sufficient to prove by a 
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preponderance of the evidence that the Battershells converted Surface’s 

property.

IV. Zero-Damage Award

[37] In his cross-appeal, Surface argues that the trial court erred when it awarded 

him zero damages. The trial court declined to award damages because Surface 

“failed to prove the value of his damages as to the converted property.” 

Appellants’ App. p. 19. 

He testified that the value of his deceased mother’s property was 

sentimental. Surface did not submit any receipts or other 

satisfactory evidence of the value of the remaining items of 

personal property identified in his Exhibit 11. Therefore, he is not 

entitled to recover any damages for the converted property not 

returned.

Id.

[38] Surface argues that he was entitled to a damage award based on the sentimental 

value of his converted property. Surface cites to two cases in support of his 

argument that “a damage award may be based upon” sentimental value. 

Appellee’s Br. at 23. 

[39] In Campins v. Capels, 461 N.E.2d 712 (Ind. Ct. App. 1984), three national racing 

championship rings were stolen and eventually destroyed. Capels sued the gold 

dealer who purchased the stolen rings and melted them down. Capels testified 

to the significant meaning and sentimental value of the rings at trial. He also 

testified that rings were custom made and submitted evidence of the price of 
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gold on the date the rings were stolen. Capels estimated that he would have 

never sold the rings but that their worth was between $700 to $1,000, “finally 

settling on $750 when asked to be specific.” Id. at 716.

[40] The trial court valued the rings at $1,000 each. On appeal, Campins, the gold 

dealer, argued that the damage award was excessive and Capels’s damages 

should be restricted to the price of gold or replacement value of the rings. Our 

court observed that considering sentimental value of an item to determine 

damages can be appropriate “in limited circumstances.” Id. at 721.

When we refer to sentimental value, we do not mean mawkishly 

emotional or unreasonable attachments to personal property. 

Rather, we are referring to the feelings generated by items of 

almost purely sentimental value, such as heirlooms, family 

papers and photographs, handicrafts, and trophies. What we are 

referring to basically are those items generally capable of 

generating sentimental feelings, not just emotions peculiar to the 

owner. In other words, any owner of these USAC rings would 

have similar feelings. The most apt analogy to our situation is 

that of the trophies. In two cases, courts have awarded damages 

based on the consideration of the “blood, sweat and tears” 

expended to win these objects. We see no difference in giving 

special consideration to items such as these and to the three 

USAC rings, awarded for three years of “blood, sweat and tears” 

and thus having special sentimental meaning for Capels.

Id. (citations omitted).

[41] Our court therefore concluded that it was appropriate for the trial court to 

award damages in excess of the replacement value of the rings because of the 

unique circumstances and “special attachment to this property.” Id. at 722. 
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However, our court concluded that awarding more than $750 per ring was 

excessive. Specifically, the court explained:

we can hardly deem it appropriate to fix a value higher than that 

asserted by the owner. Capels finally settled upon a figure of $750 

per ring; the court’s award of $1000 apiece could only have been 

improperly based on speculation. To decide otherwise would be 

to open a Pandora’s box of problems in the computation and 

proof of actual value. By our decision here, we simply conclude 

that certain property, by its very nature, has an element of 

sentiment essential to its existence. In this case, we refer to 

symbols for achievements of national stature and recognition and

the calculation of their actual value. But we must also add the 

proviso that even for significant awards or mementos we do not 

intend to permit fanciful speculation as to their worth. We must 

fashion our remedy within the realm of sensibility, as here, where 

$750 is only slightly above the established range of replacement 

values. Such would naturally also be our standard in valuating 

similar significant awards, such as an Oscar, the Heisman 

Trophy, or an Olympic medal, where the recipient retains the 

honor despite the loss of the trophy, such trophy being merely the 

symbol of the achievement and perhaps replaceable by a 

surrogate. A certain amount of sentiment is inherent in the value 

of these objects to the owner, and each case must be based on its 

own facts. But we must refrain from considering all but 

reasonable estimates of that element of sentiment. We believe in 

this case, Capels’s $750 figure was just such a reasonable value of 

each ring with the sentiment included therein.

Id. at 722–23.

[42] Surface also relies on Mitchell v. Mitchell, 685 N.E.2d 1083 (Ind. Ct. App. 1997), 

trans. granted, 695 N.E.2d 920, summarily aff’d in relevant part. In Mitchell, the 

decedent’s daughter, Pam, and his second wife, Flossie, were engaged in a long-
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standing and bitter dispute over pictures, home movies, and the decedent’s 

personal effects. The parties eventually entered into an agreement concerning 

disposition of the property, but Flossie failed to turn over certain property to 

Pam as agreed. Therefore, Pam sued for specific performance under their 

contract. 

[43] At trial, Pam testified that the items were important to her and were of great 

sentimental value, but “expressed difficulty in placing a dollar figure on items 

with little market value[.]” Id. at 1086. She eventually testified that her damages 

for her time, travel, expenses for trying to retrieve the items, and her emotional 

suffering was between $35,000 and $50,000. Id. She also testified that the value 

of the items she had never received was between $77,000 and $100,000. Id. The 

trial court ordered Flossie to produce the items Pam had not received under the 

terms of the agreement and pay Pam “$35,000.00 as damages for the wilful 

three[-]year delay in complying with the agreement.” Id. 

[44] On appeal, Flossie argued that the $35,000 damage award was speculative and 

unsupported by independent evidence of Pam’s damages. Citing Campins, our 

court observed that 

“in establishing proof of loss, the complainant is less compelled 

to provide certainty in the amount of loss as he is to provide 

certainty in the actual fact of loss.” “In addition, no mathematical 

exactitude is required in assessing damages, and all uncertainties 

are resolved in favor of the complainant and against the 

wrongdoer.” There was ample evidence before the trial court to 

provide certainty as to the proof of loss and prove that the delay 

was caused by the intentional actions of Flossie. Though we 
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recognize that placing a dollar value on items of purely 

sentimental value is a difficult and abstract business, we believe 

that Campins provides sufficient guidance in the determination of 

damages.

Id. at 1088–89 (citing Campins, 461 N.E.2d at 722) (emphasis in original). Our 

court affirmed the $35,000 damage award after noting it was supported by the 

trial court’s findings and was the lowest estimate requested by Pam.

[45] In this case, Surface testified that the property was “not worth a whole lot of 

monetary value.” Tr. p. 38. And the only value of the property was sentimental 

value. Id. at 38, 54–55. Surface was specifically asked what value he would 

place on the property, and he stated, “there’s no value that . . . you could put 

[on] these items” and “[i]f you gave me three hundred thousand dollars 

($300,000) I wouldn’t take that for ‘em (sic), . . . there’s just no value.” Id. at 38.

[46] Unlike the cases Surface relies on, here there is no testimony or evidence from 

which the trial court could appropriately fashion a damage award. The Campins

court specifically cautioned against engaging in “fanciful speculation” to 

determine a damage award where personal property has unique sentimental 

value attached. 461 N.E.2d at 722. Surface failed to provide any evidence 

concerning value of the converted personal property, and therefore, we affirm 

the trial court’s zero-damage award.

V. Attorney Fees

[47] Finally, Battershells argue that Surface’s failure to prove monetary damages 

precludes an award of attorney fees. Under the Crime Victim’s Relief Act, a 
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person who suffers a pecuniary loss as a result of conversion may recover 

reasonable attorney fees from the person who caused the loss. Ind. Code § 34-

24-3-1. The statute is penal in nature and must be strictly construed. Coleman v. 

Coleman, 949 N.E.2d 860, 869 (Ind. Ct. App. 2011).

[48] In Coleman, our court held that “if a plaintiff suffers no pecuniary loss as the

result of a defendant’s actions, the plaintiff is not entitled to recover attorney 

fees under the Crime Victim’s Relief Act. Id. (citing Bridgeforth v. Thornton, 847 

N.E.2d 1015, 1028 (Ind. Ct. App. 2006)). 

The statute explicitly refers to “pecuniary loss” as the necessary 

prerequisite for an award of attorney fees. It does not state that 

any “victim” of one of the enumerated crimes is entitled to 

attorney fees. If the legislature had intended the statute to have 

that broad of an application, it could have worded the statute 

differently.

Id. The jury found in favor of the plaintiff on the theft count but also found that 

she suffered no damages as a result of the theft. Therefore, our court concluded 

that the plaintiff was not entitled to an award of attorney fees. Id. at 870.

[49] In its separate order awarding attorney fees, the trial court found that Surface 

“suffered a pecuniary loss as a result of” the Battershells’ conduct and was 

entitled to an award of attorney fees pursuant to Indiana Code section 34-24-3-

1. Appellants’ App. p. 21. The trial court concluded that Surface’s “pecuniary 

loss consisted of many items of personal property that were identified as having 

sentimental value, and other property that while [Surface] failed to establish a
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value for purposes of an award of damages, still were converted nonetheless.” 

Id. at 22.

[50] Black’s Law Dictionary defines the term “pecuniary” as “of or relating to 

money; monetary.” Black’s Law Dictionary 1152 (7th ed. 1999). And a pecuniary 

loss is defined as “a loss of money or of something having monetary value.” Id. 

at 957. Similarly, the Oxford English Dictionary defines pecuniary as 

“consisting of money; exacting in money.” New Shorter Oxford English Dictionary

2136 (4th ed. 1993).

[51] Surface testified that the property the Battershells converted had little to no 

value and the only value was sentimental. Tr. p. 38. A sentimental loss with no 

monetary value is not a pecuniary loss. For this reason, we conclude that the 

trial court erred when it awarded attorney fees to Surface.5 See Coleman, 949 

N.E.2d at 870. We therefore reverse the attorney fee award and remand for 

proceedings consistent with this opinion. 

Conclusion

[52] The trial court acted within its discretion when it set aside the summary 

judgment entered in the Battershells’ favor. The court’s findings that the 

Battershells breached the lease and converted Surface’s property are supported 

 

5 Therefore, we need not address Surface’s claim in his cross-appeal that the trial court should have awarded 

him additional attorney fees.
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by the evidence. We also affirm the trial court’s zero-damage award, but as a 

result, must reverse the trial court’s decision to award Surface attorney fees. 

[53] Affirmed in part, reversed in part, and remanded for proceedings consistent 

with this opinion.

Riley, J., and May, J., concur.