Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 1 of 20

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 

APPELLANT/CROSS-APPELLEE

James M. Lewis

Michael J. Hays

Tuesley Hall Konopa LLP

South Bend, Indiana

ATTORNEY FOR 

APPELLEE/CROSS-APPELLANT

Timothy J. Maher

Barnes & Thornburg LLP

South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re: The Scott David Hurwich 

1986 Irrevocable Trust;

Scott D. Hurwich,

Appellant/Cross-Appellee-Plaintiff,

v.

Stacey MacDonald,

Appellee/Cross-Appellant-Defendant.

July 3, 2019

Court of Appeals Case No.

18A-TR-2906

Appeal from the St. Joseph Probate 

Court

The Honorable Steven L. 

Hostetler, Special Judge

Trial Court Cause No.

71D07-1410-TR-16

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 2 of 20

Statement of the Case

[1] Scott D. Hurwich is the settlor and sole beneficiary of the Scott David Hurwich 

1986 Irrevocable Trust (“the Trust”). In 2014, Scott filed a complaint in which 

he alleged that Stacey R. MacDonald, the former trustee of the Trust, had 

breached her fiduciary duty to Scott. Stacey filed a counterclaim in which she 

alleged that Scott had received compensation in the amount of $10,000 for 

timber that had been removed from Stacey’s property. Following a hearing, the 

probate court found in favor of Stacey on most of Scott’s claims. However, the 

court found that Stacey had wrongfully used funds from the Trust to pay two 

nontrust expenses, so the court ordered Stacey to pay Scott $416.67. The 

probate court also found for Stacey on her counterclaim and ordered Scott to 

pay Stacey $10,000 for the timber taken from Stacey’s property. The probate 

court denied both parties’ requests for attorneys’ fees.

[2] Scott now appeals and raises four issues for our review, which we revise and 

restate as follows:

1. Whether the probate court erred when it concluded that 

Stacey’s legal fees were reasonable Trust expenses.

2. Whether the probate court erred when it determined that 

Stacey had substantially complied with the statutory

requirement for her to deliver Trust accountings to Scott. 

3. Whether the probate court erred when it denied his request 

for attorneys’ fees. 
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4. Whether the probate court erred when it found in favor of

Stacey on her counterclaim.

Additionally, Stacey raises the following issue for our review:

5. Whether the probate court erred when it denied her request 

for attorneys’ fees. 

[3] We affirm in part, reverse in part, and remand for further proceedings. 

Facts and Procedural History

[4] Scott created the Trust in 1986, and he is the only beneficiary. Scott has two 

siblings, Jeff Hurwich and Stacey, who each have their own trust. Jeff, Stacey, 

and Scott jointly owned seventeen properties located across the country. Some 

of the properties were owned in equal shares by the three trusts, and some were 

jointly owned by the three individuals. 

[5] Stacey began serving as Trustee of the Trust in 2004. While she was the 

Trustee, Stacey had control over investment accounts that contained stocks and 

other liquid Trust assets. Those investment accounts were managed by John A.

Siberell & Company (“Siberell”). Siberell also managed the liquid assets of 

Jeff’s and Stacey’s trusts. Stacey would periodically transfer an equal amount 

of funds from all three trust accounts at Siberell into a bank account at 

KeyBank that Stacey controlled. Stacey then used the funds in the KeyBank 

account to manage the assets that were jointly owned. Stacey also served as 

Trustee of Jeff’s trust for some period of time.
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[6] After a dispute arose between Jeff and Stacey regarding how Stacey was 

handling Jeff’s trust, Scott became concerned with how Stacey was handling the 

Trust. Scott attempted to talk to Stacey, but Stacey did not address his 

concerns. Scott was also unable to get a Trust accounting from Stacey. 

Accordingly, on October 12, 2012, Scott removed Stacey as Trustee. 

[7] In 2013, a dispute arose between the three siblings in relation to their real estate 

holdings. On April 9, Scott, Jeff, and Stacey entered into a mediated settlement 

agreement. Pursuant to that agreement, the three individuals partitioned the 

properties. Additionally, on June 3, 2014, Stacey became the sole owner of a 

property on Adams Road in St. Joseph County, Indiana. That property 

bordered a property on Primrose Lane that is owned by Scott. On June 16, 

Scott entered into two contracts with U.S. Timber & Veneer (“U.S. Timber”). 

One contract provided that U.S. Timber would harvest timber from Scott’s 

property on Primrose Lane in exchange for $6,000, and the other provided that 

U.S. Timber would pay Scott $4,000 in exchange for timber from another 

property. However, U.S. Timber did not harvest any trees at that time. 

[8] On October 2, Scott filed a complaint against Stacey. In relevant part, Scott 

asserted that Stacey had breached her fiduciary duty to Scott. Specifically, 

Scott alleged that Stacey had used funds from the Trust to pay for personal 

expenses and that she had refused to provide an accounting of the Trust at any 

time while she was the Trustee. Accordingly, Scott asked the probate court to 

order Stacey to deliver an accounting of the Trust to him and to award him 

damages, including costs and attorneys’ fees. In response, Stacey filed a motion 
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to dismiss pursuant to Indiana Trial Rule 12(B)(6). The probate court granted 

Stacey’s motion and dismissed Scott’s complaint. Scott appealed. 

[9] Meanwhile, on April 7, 2015, Stacey’s husband, Terry MacDonald, received a 

phone call alerting him that there were people logging trees on Stacey’s 

property on Adams Road. Terry then went to the Adams Road property, but 

by the time he had arrived, the people were gone. Terry was able to see that 

“sap was running on the stumps and the tree tops,” which indicated that the 

trees had been “freshly cut.” Tr. Vol. II at 123. Terry later learned that U.S. 

Timber had removed the trees.1

 Accordingly, Terry contacted U.S. Timber, 

and U.S. Timber provided Terry with a copy of a check for $10,000 that they 

had paid to Scott. 

[10] On August 25, 2016, this Court held that the probate court had erred when it 

dismissed Scott’s complaint against Stacey and reversed the judgment of the 

probate court. See Hurwich v. MacDonald (In re Hurwich Trust), 59 N.E.3d 977, 

984 (Ind. Ct. App. 2016). Accordingly, the probate court reinstated Scott’s 

complaint. Stacey then filed her answer. In her answer, Stacey denied the 

allegations, and, as an affirmative defense, she asserted that Scott’s claims were 

barred by a two-year statute of limitations. Stacey also filed a counterclaim 

 

1

 Scott asserts that, when Terry testified at the ensuing trial as to who had cut the trees on Stacey’s property, 

the court sustained Scott’s hearsay objection. Scott is correct that the probate court sustained his objection 

when Terry first attempted to testify that his neighbor had told him who had removed the trees from his 

property. However, Stacey’s counsel rephrased the question and again asked Scott who had removed the 

trees. At that point, Scott again objected, but the probate court stated that Scott could question Terry about 

his personal knowledge and, in effect, overruled the objection. 
Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 6 of 20

against Scott in which she asserted that Scott had committed conversion when 

he accepted payment for timber that had been harvested from her property. 

[11] The probate court held a hearing on October 2, 2018. Prior to the hearing, 

Scott and Stacey stipulated to the admission of the exhibits. Those exhibits 

included copies of some of the bank statements from the KeyBank account and 

copies of invoices from Stacey’s attorneys. During the hearing, Stacey testified

that she had never prepared a Trust statement for Scott while she was Trustee. 

However, she testified that Siberell generated monthly statements that listed the 

Trust assets and their gains and losses and that they prepared a year-end 

summary each year. She also testified that she had hired Crowe Chizek

(“Crowe”) to prepare an annual accounting of the Trust for tax purposes, which 

Crowe did every year that Stacey was Trustee of the Trust. Stacey further 

testified that she believed that Scott had received the reports from Siberell and 

Crowe every year. 

[12] Scott then questioned Stacey about the invoices from her attorneys. Stacey 

testified that the invoices were for work her attorneys had done for her between 

September of 2011 and November of 2013 and that she had paid those invoices 

from the KeyBank account. Stacey further testified that, in addition to the 

current legal dispute between her and Scott, she had previously been involved 

in other legal proceedings with family members. Scott attempted to ask Stacey 

about the scope of the work that the invoices covered, but Stacey’s attorney 

objected to the question as the description of the work provided by the attorneys 

had been redacted on all of the invoices. 
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[13] Scott also testified at the hearing. He testified that, when he contracted for U.S. 

Timber to harvest trees from his property, he never authorized anyone to enter 

onto Stacey’s property. He further testified that he had previously had his 

property surveyed and that the surveyor had marked the boundaries of his 

property with orange flags. He also testified that he had informed U.S. Timber 

that the orange flags marked the boundary to his property. 

[14] Following the hearing, the parties each submitted post-trial briefs. Thereafter, 

the probate court issued findings of fact and conclusions thereon. As to Scott’s 

claims, the court found that “Stacey did not directly or indirectly steal, 

misappropriate, misuse, or improperly receive, retain, or apply any of Scott’s

assets or any assets of the Trust.” Appellant’s App. Vol. II at 11. However, the 

probate court did find that Stacey had wrongfully paid $750 for Terry’s real 

estate taxes and $500 for hay for her horses out of the KeyBank account. 

Accordingly, the probate court found that Scott “is entitled to recover from 

Stacey one-third . . . of the total of those two amounts, or $416.67.” Id. As for 

Scott’s claim that Stacey had wrongfully used funds in the KeyBank account to 

pay for her personal legal bills, the court found that “no evidence was 

introduced to support that speculation.” Id. at 13. Accordingly, the probate 

court denied Scott’s claims arising from Stacey’s payments to her attorneys. 

[15] The court also found for Stacey on Scott’s claim that she had failed to provide 

an accounting of the Trust. Specifically, the probate court found that Stacey 

was not derelict in her responsibility to provide Scott with periodic accountings 

of the Trust because Scott had received monthly and yearly statements from 
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Siberell and annual tax returns from Crowe. In addition, the probate court also 

found that “Scott knew for a long time that he was not being provided other 

reports or accounting from Stacey.” Id. at 12. Because “Scott failed to take any 

action within two years after becoming aware that Stacey was not providing the 

information he desired,” his “claims arising from a lack of providing 

accountings [are] barred by the applicable two-year statute of limitations.” Id. 

at 13. Accordingly, the court only awarded Scott $416.67. 

[16] In regard to Stacey’s counterclaim, the probate court found that Scott had 

received $10,000 “from timber taken from Stacey’s property.” Id. at 16. 

However, the court found that it was an “honest error” on Scott’s part and not 

conversion, so the court declined to award treble damages to Stacey. Id. 

Accordingly, the court awarded Stacey $10,000. The court then offset the two 

awards and ordered Scott to pay Stacey $9,583.33. The court declined to award 

either party attorneys’ fees. This appeal ensued. 

Discussion and Decision

[17] The parties appeal the probate court’s findings of fact and conclusions thereon 

following an evidentiary hearing. Where, as here, the court sua sponte issues 

findings and conclusions, “the specific findings control our review and the 

judgment only as to the issues those specific findings cover. Where there are no 

specific findings, a general judgment standard applies, and we may affirm on 

any legal theory supported by the evidence adduced at trial.” Trust No. 6011, 
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Lake Cty Trust Co. v. Heil’s Haven Condos. Homeowners Ass’n, 967 N.E.2d 6, 14 

(Ind. Ct. App. 2012). Further,

[w]e apply the following two-tier standard of review to sua sponte

findings and conclusions: whether the evidence supports the 

findings, and whether the findings support the judgment. 

Findings and conclusions will be set aside only if they are clearly 

erroneous, that is, when the record contains no facts or inferences 

supporting them. A judgment is clearly erroneous when a review 

of the record leaves us with a firm conviction that a mistake has 

been made. We consider only the evidence favorable to the 

judgment and all reasonable inferences flowing therefrom, and 

we will neither reweigh the evidence nor assess witness 

credibility.

Id. 

Issue One: Stacey’s Legal Fees

[18] Scott first contends that the trial court erred when it concluded that Stacey’s 

legal fees were a legitimate Trust expense based on its finding that Scott’s 

claims were mere speculation and that he did not present any evidence to 

support his claims. In essence, Scott contends that the probate court wrongly 

placed the burden on him to prove that the legal fees were not a valid Trust 

expense. We must agree. 

[19] It is well settled that “a trustee bears the burden of justifying the propriety of 

items in a trust account.” Goins v. Riddle (In re Trust of Riddle), 946 N.E.2d 61, 

68 (Ind. Ct. App. 2011). Then, if the trustee makes a prima facie showing that 

the accounts are proper, the burden shifts to the beneficiaries to show specific 
Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 10 of 20

instances of impropriety. See id. Accordingly, the burden was first on Stacey to 

demonstrate that the legal fees were a legitimate Trust expense. 

[20] Here, there is no dispute that Stacey used the KeyBank account, which was 

funded in part by the Trust, to pay more than $107,000 in attorneys’ fees. But 

the only evidence Stacey presented in relation to those legal fees were invoices 

in which the description of the work performed is completely redacted. And 

Stacey did not provide any testimony to indicate that those legal bills pertained 

to services performed only in relation to the Trust. In other words, the invoices 

show only who did the legal work, not the work that was done, and there is no 

dispute that Stacey had hired the same lawyers to work on prior, unrelated

lawsuits with which she had been involved in capacities other than her capacity 

as Trustee of Scott’s Trust. Indeed, the evidence demonstrates that, while Scott 

did not file his lawsuit against Stacey until 2014, the legal bills covered a period 

of time between 2011 and 2013 and all of the invoices listed Jeff’s name, not 

Scott’s name, in reference to the services rendered. See, e.g., Ex. at 266. 

Accordingly, we agree with Scott that Stacey did not meet her burden to show 

that the legal fees at issue were related to the Trust or were otherwise a 

legitimate Trust expense. 

[21] We agree with Scott that the trial court improperly placed the burden on him to 

prove that the legal fees were improper Trust expenses. There is no evidence to 

support the court’s determination that the fees related to the Trust. Thus, we 

hold that the probate court erred when it found that the legal fees were a 

legitimate Trust expense. Accordingly, we reverse the probate court’s finding in 
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favor of Stacey on this issue, and we remand with instructions for the probate 

court to order Stacey to reimburse Scott for his share, or one-third of the legal 

fees paid from the KeyBank account. 

Issue Two: Accounting

[22] Scott next asserts that the probate court erred when it found that Stacey had 

substantially complied with the statutory requirement to deliver a written 

statement of accounts to Scott because Scott received monthly and yearly 

statements from Siberell and annual tax returns from Crowe. Specifically, Scott 

contends that Stacey never provided an accounting of the Trust to Scott. He 

further contends that the statements from Siberell and Crowe did not offer any 

“insight into Stacey’s use of funds in the Key Bank account” and, as such, did 

not satisfy her reporting requirement. Appellant’s Br. at 13.

[23] Scott is correct that Stacey had an obligation to deliver an accounting to him

while she was Trustee of the Trust. See Ind. Code § 30-4-5-12(a) (2018). And 

there is no dispute that Stacey never delivered an accounting to Scott. 

However, the probate court did not only find in favor of Stacey on Scott’s claim 

regarding Stacey’s duty to account based on its conclusion that the statements 

from Siberell and Crowe fulfilled her reporting obligation. Rather, the probate

court also found that “Scott knew for a long time that he was not being 

provided other reports or accounting from Stacey” and that “Scott was placed 

on notice several years before 2012 that Stacey understood her responsibility” to 

provide statements to Scott. Id. Accordingly, in addition to finding that the 

Siberell and Crowe statements met Stacey’s statutory obligation, the probate
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court alternatively found that, “[b]ecause Scott failed to take any action within 

two years after becoming aware that Stacey was not providing the information 

he desired, Scott’s claims arising from a lack of providing accountings [are]

barred by the applicable two-year statute of limitations.” Id. at 13. 

[24] Scott makes no argument on appeal to explain why his claims regarding 

Stacey’s failure to provide Trust accountings are not barred by a statute of 

limitations. Indeed, Scott does not even acknowledge the probate court’s 

alternate rationale for finding in favor of Stacey on his claim. As such, Scott 

has not met his burden on appeal to demonstrate that the probate court erred 

when it denied Scott’s claim that Stacey had failed to provide Trust accountings

to him. We therefore affirm the probate court’s judgment in favor of Stacey on 

this claim. 

Issue Three: Scott’s Attorneys’ Fees

[25] Scott also asserts that the probate court erred when it denied his request for

attorneys’ fees. Specifically, Scott contends that, because “Stacey misspent trust 

funds, the probate court “should have awarded Scott his legal fees[.]” 

Appellant’s Br. at 10. We agree. 

[26] Indiana Code Section 30-4-3-11(b)(4) provides that, “[i]f the trustee commits a 

breach of trust, the trustee is liable to the beneficiary for . . . reasonable 

attorney’s fees incurred by the beneficiary in bringing an action on the breach.” 

Additionally, Indiana Code Section 30-4-3-22(e) provides that, “[i]f a 

beneficiary successfully maintains an action” to compel the trustee to redress a 
Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 13 of 20

breach of trust, “he is entitled to a judgment for reasonable attorney’s fees.” 

Further, our Supreme Court has stated that a trial court is required to award 

attorneys’ fees under those statutes. See Malachowski v. Bank One, Indianapolis, 

N.A., 682 N.E.2d 530, 532 (Ind. 1997) (holding that the beneficiaries were 

entitled to reasonable attorney’s fees after they successfully maintained an 

action for breach of trust against the trustee). 

[27] Here, the probate court found, and Stacey does not dispute, that she had 

wrongfully used the KeyBank account, which was funded in part by the Trust,

to pay $750 of her husband’s real estate taxes and $500 for hay for her horses.2

 

Because Scott successfully maintained an action for breach of Trust against 

Stacey, Scott is entitled to a judgment for reasonable attorneys’ fees. We 

therefore reverse the probate court’s judgment denying Scott’s request for 

attorneys’ fees, and we remand to the probate court for a determination of 

reasonable attorneys’ fees to award to Scott. 

Issue Four: Stacey’s Counterclaim

[28] Scott next asserts that the probate court erred when it ordered him to pay Stacey 

$10,000 based on the court’s conclusion that Scott had been paid that money 

for timber taken from Stacey’s property. We note that the probate court 

explained its reasoning but did not issue specific findings of fact on this issue. 

 

2

 And now, on appeal, Scott prevails on his claim that Stacey wrongfully spent over $107,000 from the 

KeyBank account on legal expenses unrelated to the Trust. Accordingly, Scott is entitled to an award of 

attorneys’ fees on that ground as well. 
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Accordingly, the general judgment standard applies, and we may affirm on any 

legal theory supported by the evidence. See Trust No. 6011, Lake Cty Trust Co.,

967 N.E.2d at 14.

[29] Scott contends that “[t]here was no . . . evidence regarding who cut Stacey’s 

trees or when they were cut.” Appellant’s Br. at 15. We cannot agree. While 

the probate court did not expressly find that U.S. Timber had removed trees 

from Stacey’s property, that finding is implicit in the court’s judgment on 

Stacey’s counterclaim, and there is sufficient evidence in the record to support 

that inference. Terry testified that he had received a call on April 7, 2015,

alerting him that someone was cutting trees on Stacey’s property. Terry further

testified that, on the same day, he visited Stacey’s property and discovered that 

trees had been “freshly cut.” Tr. Vol. II at 123. And Terry testified that U.S. 

Timber had removed the trees and had provided him with copies of its contracts 

with Scott, to which the parties stipulated. Thus, contrary to Scott’s assertion, 

there is evidence in the record that U.S. Timber removed trees from Stacey’s

property on or about April 7, 2015. 

[30] Scott next contends that the probate court erred when it ordered Scott to pay 

Stacey for the timber because “Scott did not direct anyone to go on Stacey’s 

land.” Appellant’s Br. at 16. He further asserts that, “[i]f U.S. Timber . . . went 

outside the scope of Scott’s authority and harvested trees from neighboring 

lands, it was outside its agency, and Scott is not liable for its actions.” Id. In 

essence, Scott contends that U.S. Timber was an agent but that he is not 

responsible for the actions of an agent that exceeded the scope of its authority. 
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[31] While Scott describes U.S. Timber as an “agent,” and Stacey does not dispute 

that characterization, the record indicates that U.S. Timber was an independent 

contractor. An independent contractor is “a person who contracts with another 

to do something for him but who is not controlled by the other nor subject to 

the other’s right of control with respect to his physical conduct in the 

performance of the undertaking.” Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 

148 (Ind. 1999). Here, U.S. Timber contracted with Scott to remove timber

from two properties owned by Scott. And there is no evidence in the record to 

indicate that Scott exerted any control over U.S. Timber when it removed the 

timber. Indeed, Scott testified that he was out of the state at the time U.S. 

Timber harvested Stacey’s trees. All of the evidence shows that U.S. Timber 

was an independent contractor.

[32] It is well settled that, generally, a person who hires an independent contractor is 

not liable for the acts of the independent contractor. See Barnard v. Menard, Inc., 

25 N.E.3d 750, 755 (Ind. Ct. App. 2015). This is because the person who hires 

the contractor typically exercises little, if any, control over the means or manner

of the works of its contractors and requires only that the completed work meet 

the specifications of the contract. See id. Because U.S. Timber was an 

independent contractor, and because Scott did not exert any control over U.S.

Timber, Scott is not liable at law for U.S. Timber’s act of removing timber from 

Stacey’s property.

[33] The probate court explained its judgment on Stacey’s counterclaim as follows:
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The final issue is the claim asserted by Stacey against Scott for 

timber removed from Stacey’s separate property for which Scott 

received compensation in the amount of $10,000.00. The Court 

finds that Scott received $10,000.00 from timber taken from Stacey’s

property, and Scott must pay that amount to Stacey. However, there 

was absolutely no evidence whatsoever that would allow the 

Court to find that Scott’s actions in receiving $10,000.00 from the 

sale of timber from Stacey’s land was done intentionally, 

recklessly, or willfully. It was not a conversion. It was an honest 

error on Scott’s part. Scott’s actions are not criminal in nature 

and do not justify the trebling of damages or an award of 

attorney fees pursuant to I.C. § 34-24-3-1. However, the timber 

proceeds belong to Stacey and judgment on Stacey’s 

counterclaim is therefore entered in favor of Stacey and against 

Scott in the amount of $10,000.00.

Appellant’s App. Vol. II at 15-16 (emphasis added).

[34] While the probate court did not mention unjust enrichment, the court found, in 

effect, that Scott had been unjustly enriched. The parties did not address unjust 

enrichment in their briefs. Because we may affirm on any theory supported by 

the record, see Trust No. 6011, Lake Cty Trust Co., 967 N.E.2d at 14, we will 

consider whether Scott was unjustly enriched. This court has recently stated

that, to show 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.’” Estate 

of Henry v. Woods, 77 N.E.3d 1200, 1207 (Ind. Ct. App. 2017) (quoting Bright v. 

Kuehl, 650 N.E.2d 311, 316 (Ind. Ct. App. 1995) (emphasis added).
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[35] The evidence shows that Scott contracted with U.S. Timber to remove timber 

from two of his properties; the contract price was a total of $10,000; U.S. 

Timber removed timber from Stacey’s property; and U.S. Timber paid Scott 

$10,000. From this evidence, the trial court inferred “that Scott received 

$10,000 from timber taken from Stacey’s property,” Appellant’s App. Vol. II at 

15-16, and, hence, that Scott received a measurable benefit to which he was not 

entitled. There is no direct evidence that either all or any part of U.S. Timber’s 

$10,000 payment to Scott was attributable to timber cut from Stacey’s property. 

For that matter, there is no evidence that any such payment was not for timber 

removed from Scott’s properties. The contract price was not based on whether 

more or less timber was cut, and there is no evidence that Scott received any 

additional consideration or benefit from U.S. Timber’s removal of Stacey’s 

timber beyond the contract price. There are gaps in the evidence, including 

questions that could have and should have been asked on the direct or crossexamination of Scott, or evidence that might have been provided by third-party 

witnesses who were not called to testify.

[36] Nevertheless, we need not decide whether the evidence supports the trial court’s 

conclusion that Scott received a benefit for which he was not entitled because 

there is an adequate and independent reason why Stacey is not entitled to 

recover from Scott. Unjust enrichment is an equitable remedy, which is usually 

unavailable where there is an adequate remedy at law. Swami, Inc. v. Lee, 841 

N.E.2d 1173, 1178 (Ind. Ct. App. 2006). Here, again, shortly after Terry 

received a phone call in April 2015 alerting him that timber was being removed 
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from Stacey’s property, he learned that U.S. Timber had harvested the trees. 

That same day, Terry filed a police report in which he asserted that timber had 

been stolen from Stacey’s property. There is no discovery issue here. Stacey 

was on inquiry notice that her timber had been cut and had good reason to 

believe that U.S. Timber was liable for it. Stacey could have pursued a claim 

against U.S. Timber but did not. Because Stacey had an adequate remedy at 

law in 2015, she is not entitled to an equitable remedy from Scott years later.3

[37] In sum, the evidence shows that Stacey had been damaged by the unauthorized 

removal of timber from her property. The evidence also shows that U.S. 

Timber was acting as an independent contractor when it removed the timber 

and that Scott is not liable as a matter of law for U.S. Timber’s conduct. 

Further, because Stacey had an adequate remedy at law against U.S. Timber 

but failed to pursue it, she is not entitled to an equitable remedy against Scott, 

and the trial court erred when it ordered Scott to pay Stacey $10,000. We 

therefore reverse the trial court’s judgment on this issue. 

Issue Five: Stacey’s Attorneys’ Fees

[38] Finally, Stacey contends that the probate court erred when it found that she is 

not entitled to recover attorneys’ fees from Scott. Specifically, Stacey contends 

 

3

 Moreover, we observe that Stacey’s action against U.S. Timber would be for the wrongful removal of her 

timber, and damages would be measured by stumpage not the contract price agreed to by Scott and the 

timber company. And Stacey would be entitled to seek an amount not to exceed three times her actual 

damages, costs of the action, a reasonable attorney’s fee, travel expenses, and other reasonable costs of 

collection. See Ind. Code § 34-24-3-1. 
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that the probate court “prematurely” ruled on the issue of attorneys’ fees 

because the parties had agreed in the final pretrial order “that neither party 

would submit a fee claim until such time as the underlying matters had been 

determined.” Appellee’s Br. at 17, 19. In essence, Stacey contends that the 

probate court wrongly denied her the opportunity to file a motion for attorneys’

fees. We cannot agree. 

[39] In the final pre-trial order, the parties agreed that “any claim for legal fees will 

be presented through a post-trial motion[.]” Appellant’s App. Vol. II at 34, n.1. 

Following the hearing, Stacey submitted a post-trial brief in which she 

extensively argued that Scott’s claims were baseless and not supported by the 

evidence. She further asserted that she had not breached her duties as Trustee. 

Accordingly, Stacey asserted in her post-trial brief that she is “entitled” to 

recover “the money she has spent defending the claims in this matter[.]” Id. at 

58. 

[40] Because the parties agreed to present any claim for attorneys’ fees in post-trial 

motions, and because Stacey filed a post-trial brief in which she requested 

attorneys’ fees for defending against Scott’s action, the probate court did not 

deny Stacey the opportunity to make her claim that she is entitled to an award 
Court of Appeals of Indiana | Memorandum Decision 18A-TR-2906 | July 3, 2019 Page 20 of 20

of attorneys’ fees.4

 We affirm the probate court’s denial of an award of 

attorneys’ fees for Stacey. 

Conclusion

[41] In sum, we hold that the probate court erred when it found that Stacey’s legal

fees were reasonable Trust expenses. We further hold that Scott did not meet

his burden on appeal to demonstrate that the probate court erred when it 

concluded that his claims against Stacey regarding her duty to account were 

precluded by the applicable statute of limitations. Additionally, we hold that

the probate court erred when it declined to award Scott attorneys’ fees. As to 

Stacey’s counterclaim, the probate court erred when it ordered Scott to pay 

Stacey $10,000 for timber that U.S. Timber had harvested from her property. 

Finally, we hold that the probate court did not deny Stacey the opportunity to 

file a motion for attorneys’ fees. We therefore affirm the probate court in part, 

reverse in part, and remand with instructions. 

[42] Affirmed in part, reversed in part, and remanded for further proceedings. 

Baker, J., and Robb, J., concur.

 

4

 Stacey also asserts that a “consideration of Stacey’s fees is warranted” because she “was found not to have 

violated any of her obligations as Trustee. Appellee’s Reply Br. at 7. To the extent Stacey asserts that she is 

entitled to an award of attorneys’ fees because she successfully defended against Scott’s claims, we cannot 

agree. As discussed above, Stacey wrongfully used a bank account partially funded by Trust funds to pay for 

over $107,000 in legal fees not related to the Trust, her husband’s real estate taxes, and hay for her horses.