UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MARION T LLC, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:12-cv-00456-SLC

)

FORMALL INC., )

)

Defendant, )

OPINION AND ORDER

 Plaintiff Marion T, LLC (“Marion T”), filed this suit against Defendant Formall, Inc.

(“Formall”), claiming that Formall converted certain spare parts, miscellaneous items, and bus

duct owned by Marion T and located in Marion T’s facility.1

 Formall, in turn, advances a

counterclaim of conversion against Marion T, claiming that Formall was the rightful owner of

this equipment and that Marion T wrongfully withheld a portion of the bus duct from Formall. 

On March 30, 2017, the Court entered an Opinion and Order on Formall’s motion for summary

judgment, identifying the issues that remained for trial: (1) whether Formall removed from the

Marion T facility certain spare parts and miscellaneous items that Marion T owned; and (2)

whether Formall removed from the Marion T facility a portion of the bus duct that Marion T

owned, or conversely, whether Marion T withheld from Formall a portion of the bus duct that

Formall owned. 

These Findings of Fact and Conclusions of Law follow a three-day bench trial held on

1 Marion T sued Formall in Grant County Superior Court; Formall later removed the case here, and the case

was assigned No. 1:13-cv-132. (No. 1:13-cv-132, DE 1). Case No. 1:13-cv-132 was later consolidated with this

case, No. 1:12-cv-456, which was Marion T’s action against Thermoforming Machinery & Equipment, Inc.

(“TME”). (DE 14; DE 50; No. 1:13-cv-132, DE 29). 

Diversity jurisdiction exists under 28 U.S.C. § 1332(a). Jurisdiction of the undersigned Magistrate Judge is

based on 28 U.S.C. § 636(c), all parties consenting. (DE 18).
June 26-28, 2017, on the parties’ competing claims of conversion. (DE 116-DE 118). 

Following the preparation of a transcript (DE 119-DE 121),2 the parties submitted proposed

findings of fact and conclusions of law (DE 124-DE 125). Formall timely filed a response (DE

126) to Marion T’s proposed findings of fact and conclusions of law. Marion T, however, did

not file a response to Formall’s proposed findings of fact and conclusions of law, and its time

to do so has passed. (See DE 123).

After examining the entire record, considering the arguments of counsel, and

determining the credibility of the witnesses, the Court makes the following Findings of Fact

and Conclusions of Law in accordance with Federal Rule of Civil Procedure 52(a) based upon

a preponderance of the evidence. 

I. FINDINGS OF FACT3

A. Marion T Purchases the Thompson/RCA Site

Lester Lee (“Lee”) was the manager of Marion T at the time of the events pertinent to

this suit, and he testified on Marion T’s behalf.4

 (Tr. 25). Lee, who has a high school

2 Reference to the trial transcript is made as “Tr. __” and trial exhibits as “Ex. __”.

3 Any Finding of Fact deemed to be a Conclusion of Law is hereby incorporated into Section II, and any

Conclusion of Law in Section II deemed to be a Finding of Fact is hereby incorporated into this Section.

4 Lee has given conflicting information about the ownership of Marion T. Lee stated in an affidavit and at

his deposition that Marion T is an Indiana limited liability company solely owned by The Lee Group Holding

Company, LLC, whose members are Brenda R. Lee, Larry L. Lee, Melinda L. Gabbard, and Debra Jo Brown, all

citizens of Indiana. (Tr. 78; DE 9-2). However, at trial, he admitted on cross examination that he may have testified

in another litigation that he owned Marion T himself. (Tr. 79-80). When asked whether he had ever been an owner

of Marion T, he stated that he just could not recall. (Tr. 79-80). 

Lee’s difficulty recalling factual details was noted throughout the trial, as Lee was often vague in his

testimony or answered that he could not recall. Lee’s testimony also revealed several contradictions (see, e.g., Tr.

67-69 (who paid for the installation of the bus duct), 79-81 (ownership of The Lee Group Holding Company, LLC),

114-15 (claiming that the temperature control units were converted), 125-26 (whether the two Brown thermoformers

were identical)). Overall, Lee’s testimony was not particularly credible. In fact, the credibility of his testimony was

not dissimilar to his testimony at the trial between Marion T and TME in 2014, where the Court determined: “Lee

seems to have a vague or selective memory and an overall disputatious nature. In short, his testimony lacked

2
education, has started and owned more than 100 companies, including Lee’s Inns of America,

a public company with 400 employees; gold mine operations in Yukon territory; and oil wells

in Kentucky. (Tr. 19, 21). Some of his past businesses involved setting up offices

internationally, including in Russia. (Tr. 21). 

In March 2005, Marion T purchased for one dollar the former “Thompson/RCA”

television factory site in Marion, Indiana, including the industrial manufacturing building in

which the equipment in dispute was housed.5 (Tr. 22, 32, 44; DE 113 Stip. 1). The site was 62

acres and had over one million square feet under roof. (Tr. 22). Thompson/RCA left

everything except patentable items because the equipment and parts had become obsolete.6

(Tr. 22, 28, 44). Marion T’s business at the facility consisted of salvaging items from the

former operations of Thompson/RCA. (Tr. 44-45). 

B. Marion T and TriEnda Enter Into the TriEnda Lease

In December 2008, Marion T entered into a Lease Agreement (“the TriEnda Lease”)

with TriEnda, LLC (“TriEnda”), a plastic pallet manufacturing company, leasing 183,808

square feet of the Marion T facility to TriEnda for a term of four and a half years. (DE 113

Stip. 4; Ex. 6; Tr. 26-27). TriEnda was the only tenant at the time. (Tr. 239). TriEnda paid

$2.50 per square foot per year, received the first six months rent free, and TriEnda was to pay

credibility, which is why it has been, for the most part, rejected.” (DE 48 at 7 n.10 (citations omitted)).

5 Lee stated that the utility bills for the Thompson/RCA site were costing the seller hundreds of thousands

of dollars a month, and thus, the seller made money by selling it to Marion T for one dollar. (Tr. 24). 

6 Marion T sold off one piece of the Thompson/RCA site for $4.2 million and gifted the City of Marion the

balance of the property for $5.4 million. (Tr. 22). Thus, Marion T paid one dollar and received more than $10

million in value in return. (Tr. 23).

3
the utility bills, the maintenance, the taxes, and any expenditures that the building would need.7

(Tr. 26-27; Ex. 6). 

The portions of the TriEnda Lease applicable to this dispute are, in relevant part:

Article 7. CARE OF PREMISES. . . . At the expiration

of this Lease or any extensions hereof, Tenant shall surrender the

Leased Premises, including any alterations, improvements and/or

additions to the Leased Premises made by Tenant which are

required to be left at the termination of this Lease . . . . 

Article 11. FIXTURES. Any trade fixtures belonging to

and installed by Tenant in the Leased Premises prior to or during

the term of this Lease, or any extensions hereof, are to be and

remain the property of the Tenant, no matter how they may be

attached to or incorporated in the Leased Premises, and Tenant

shall have the duty to remove same at the termination of this

Lease, or any extensions hereof, and to repair, at its own expense,

any damage to the Leased Premises caused by the installation or

removal of such fixtures. Trade fixtures shall be manufacturing

equipment and electrical wiring back to the first junction box or

electrical service feed.

Article 12. TENANT IMPROVEMENTS. Tenant may

make such alterations to the Leased Premises as necessary for

conduct of its business, after submission of plans, specifications

and contracts to Landlord. Any existing equipment or metals

removed in the course of such improvement shall remain the sole

property of Landlord. All improvements (other than trade fixtures)

inure to the benefit of Landlord.

(Ex. 6 (emphasis added)).

7 Lee testified that Marion T charged TriEnda $1 to $1.50 below market rate and gave it six months free

rent because TriEnda was going to remodel the space and raise the height of the building by 10 or 12 feet in some

areas, and because Marion T was going to obtain the ownership of the bus duct that TriEnda was installing. (Tr. 27,

30-31, 67-68). Lee acknowledged, however, that it is common for a lessor to give a slightly lower than market rate

to get the first tenant into a building. (Tr. 106). Lee concedes that TriEnda never did raise the height of the Marion

T facility. (Tr. 239).

4
C. TriEnda Installs Three Thermoformers and Bus Duct at the Marion T Facility

TriEnda installed three large thermoformers—two of which were Brown

thermoformers—into the leased space at the Marion T facility. (Tr. 107, 266, 272). 

Thermoformers are very complicated pieces of machinery with anywhere from 5000 to 10,000

parts, components, and pieces. (Tr. 265). Only one other Brown thermoformer of similar size

existed in the world. (Tr. 272, 367). Each Brown thermoformer installed at the Marion T

facility was roughly the size of a 3000 to 5000 square foot home with a footprint of about 100

feet by 100 feet and 22 feet tall. (Tr. 266). 

Thermoforming in general, and the Brown thermoformers in particular, require a lot of

power.8

 (Tr. 268). Lee testified that the Marion T facility already had three substations, six

powerhouses, transformers, and equipment that would service a large voltage and amps, but

that TriEnda had additional electrical equipment installed. (Tr. 27-28). In particular, and most

relevant to this dispute, Lee testified that TriEnda had bus duct9

 installed—which cost

$203,000 at the time—to connect the two Brown thermoformers to the building’s power

source.10 (Tr. 27-28, 67-69, 107, 187). The third thermoformer, a Maac, required wiring, but

no bus duct. (Tr. 107, 185-86). 

D. Marion T Claims That It Stored Equipment in TriEnda’s Leased Space

Lee testified that although Marion T still had about 800,000 square feet of its own

8

 In fact, running a large Brown thermoformer at full capacity requires an amount of power akin to that

required by a small city. (Tr. 268).

9

 Bus duct is sometimes referred to as “feeder duct,” “bus bar,” or “bus ducting.” (Tr. 197; Ex. 9).

10 Lee’s story as to who had the bus duct installed has shifted during the course of this litigation. At his

deposition in 2015, Lee testified that it was Marion T who had paid for and installed the bus duct. (Tr. 67-69).

5
space at its disposal, Marion T stored certain equipment or items of value in an “east parts

room” located within the space that it had leased to TriEnda. (Tr. 99-100, 137). Lee stated

that he left the items there with TriEnda’s permission because the items were out of the way

and because it took a while to move some of them out. (Tr. 99-100, 137). However, at the

trial between Marion T and TME in 2014 (DE 40), Lee was asked, “Was there was anything

besides assets that TriEnda has brought to the facility and in the TriEnda spare part room?” to

which, Lee responded, “Well, TriEnda leased it, and TriEnda, I assume, brought the parts

there.” (Tr. 138). 

Jim Jones (“Jones”), Lee’s property manager at Marion T, also testified. Jones, who

has a high school education, had worked at Thompson/RCA for 27 years until it closed down. 

(Tr. 203-04). After that, he worked for Marion T, first doing demolition work and later as the

site’s property manager. (Tr. 204, 206). Jones testified that when TriEnda leased the space in

2007, there were still some “skids that had stuff on it,” which included brass valves and similar

parts that Marion T had salvaged from the Thompson/RCA operations. (Tr. 251-52). At his

deposition, however, Jones testified that the Marion T facility was “[p]retty much vacant”

when TriEnda leased the space in 2007, and that there were no equipment or parts left from

Thompson/RCA that TriEnda had not used.11 (Tr. 251-52). 

E. The Sale of the TriEnda Assets to TME

TriEnda’s business venture eventually failed, and its assets were sold in a secured party

11 Jones, too, had some credibility issues when testifying, as his testimony shifted at times, resulting in

Jones contradicting himself or Marion T’s stipulated facts on at least two points. (See, e.g., Tr. 217-18 (stating that

Formall removed all of the bus duct to the west thermoformer and no bus duct was left in the Marion T facility), 234-

37, 246, 251-52 (contradicting himself about whether any Thompson/RCA items were left in the TriEnda leased

space)). 

6
sale to Spara LLC, which later became known as Lexington Logistics (“Spara/Lexington”). 

(DE 113 Stips. 2, 3). Spara/Lexington refused to pay rent on the Marion T facility and was

later joined as a party to a lawsuit brought against TriEnda. (DE 113 Stip. 3). As part of a

plant-wide liquidation, Spara/Lexington contracted TME to sell all of the former TriEnda

assets and equipment located in the Marion T facility. (DE 113 Stip. 4). Plastic pallet

manufacturing equipment is large and has a limited market. (Tr. 266, 272; DE 113 Stip. 5).

TME eventually purchased the former TriEnda assets from Spara/Lexington for $1.5

million. (DE 113 Stip. 4). TME then worked to find a plastic pallet maker who might buy the

former TriEnda assets. (DE 113 Stip. 4). The TriEnda equipment remained in the Marion T

facility while TME’s owner and president, Donald Kruschke (“Kruschke”), solicited buyers for

the equipment. (DE 113 Stip. 4). 

F. TME Starts Negotiating With Formall to Purchase Some of the TriEnda Equipment

In February 2012, Kruschke started negotiating with Formall, a Tennessee-based

custom manufacturer specializing in plastic thermoforming, sheet extrusion, metal fabrication,

powder coating, and assembly, to purchase a portion of the TriEnda equipment that TME had

purchased. (DE 113 Stip. 6; Tr. 272). Formall makes some of the biggest parts of any

company in the thermoforming industry. (Tr. 265). Christopher Krohn (“Krohn”), Formall’s

director of operations, testified on Formall’s behalf at the trial.12 (Tr. 260, 269). Formall,

which has about 200 employees, is owned by Krohn’s family, but Krohn himself has no

ownership in the company. (Tr. 260, 269). Krohn has worked for Formall for about 20 years

12 Krohn presented as a knowledgeable witness in the area of thermoforming. He testified in detail about

the facts relevant to the dispute, most of which he witnessed first hand, and his testimony had few, if any,

contradictions or gaps in logic. In contrast to Lee, there were very few events or details that Krohn could not recall. 

Krohn presented as a very credible witness. 

7
in various capacities, including running thermoforming machines and doing work with set up,

maintenance, tooling, and engineering. (Tr. 260-61). Krohn has an undergraduate and a

master’s degree in applied mathematics with a focus on industrial statistics from the College of

Business at the University of Tennessee. (Tr. 260). 

 Krohn was aware of TriEnda’s work because TriEnda was a competitor of Formall. 

(Tr. 270). As part of the negotiations, Krohn went to TriEnda’s facility in Portage, Wisconsin,

to inspect a “sister machine” to the Brown thermoformers located at Marion T. (Tr. 273). 

Formall was interested in the Brown thermoformers at the Marion T facility because they were

the largest twin-sheet thermoformers in existence. (Tr. 266). Krohn visited the Marion T

facility on several occasions during the negotiations to inspect the TriEnda equipment that

Formall was considering purchasing. (DE 113 Stip. 7). 

G. Formall Visits the Marion T Site to Inspect the TriEnda Equipment

Lee informed Jones that representatives from Formall would be coming to the Marion

T facility to look at the west thermoformer. (Tr. 207). Lee told Jones to show Formall what

they wanted to see, including all of the equipment and the parts that were laying around. (Tr.

207, 226). Lee never told Jones to inform Formall that certain items were not for sale. (Tr.

226). 

 Krohn traveled to the Marion T facility to inspect and take photos of the west

thermoformer, the spare parts inventory, and the available auxiliary equipment that TME had

purchased from TriEnda. (DE 113 Stip. 7; Tr. 273-74, 281-82). Krohn himself went to assess

the Brown thermoformers because he had decommissioned and started up thermoformers for

Formall; he estimates that he had moved 15 to 20 other thermoformers previously. (Tr. 267). 

8
Krohn explained that unless the machine is very small, the disassembly, transportation, and

reassembly of a thermoformer is a fairly complicated process involving not only the machine,

but also its power supply. (Tr. 267-68). 

During the visit, Jones took Krohn and another person from Formall through different

areas of the Marion T facility, including the west parts room, the east parts rooms, and the

penthouse where the power supply came in. (Tr. 207-08, 226). Krohn and his colleague spent

between three and four hours looking at the equipment, parts, and electrical supply during this

visit. (Tr. 208). Formall representatives also made several subsequent visits to the Marion T

facility to look at the TriEnda equipment. (Tr. 209, 273). 

Krohn testified that the west thermoformer consisted of a large rotary oven with

loading/unloading stations, two oven (heating) stations, and a forming station. (Tr. 274-80;

Ex. E). Krohn stated that he took a great deal of photos to document what Formall looked at

and to aide in the disassembly and reassembly process. (Tr. 281-82; see Ex. A). Krohn was

very interested in the TriEnda spare parts program and considered the spare parts to be an

attractive, key part of the deal. (Tr. 295). He explained that Formall runs its manufacturing

processes 24 hours a day, either five or seven days a week, and that thermoformers have

thousands of parts that are constantly being repaired or needing preventative maintenance,

making it a constant struggle to keep the machines operating 24 hours a day. (Tr. 295-97). 

Having a good spare parts program helps to keep the machines running in order to meet

customer demands and production schedules. (Tr. 296-97). Without an available spare parts

program, Krohn would have had to create one at significant additional expense. (Tr. 297). 

Krohn also considered TriEnda’s organization of the parts inventory to be important. 

9
(Tr. 297-302). TriEnda had a good spare parts program where the parts were organized in

Akro Bins, Lawson cabinets, and other cabinets. (Tr. 297-302; see, e.g., Ex. A at 41). Krohn

testified that what Marion T referred to as the “west parts room” was actually more of a

maintenance shop and main parts room for the thermoformers, while the “east parts room” was

more of a bone yard of machine parts that could be retooled, scavenged, or used for the

thermoformers.13 (Tr. 295, 303, 324-25, 457-58; Ex. A at 175-180). 

 Krohn testified that the two Brown thermoformers were identical, and that only three

such thermoformers of that size existed in the world, making their parts interchangeable. (Tr.

367). Lee disagreed, testifying that while the two Brown thermoformers were similar, they

were of different designs and configurations, making their spare parts unique to each

thermoformer. (Tr. 31, 130-33). Lee admitted, however, that he has only a “basic knowledge”

of thermoformers as a “lay person” and “doesn’t understand it all.” (Tr. 125). Furthermore,

Lee testified at his deposition in 2013 that he did not know whether the two thermoformers

were identical or not. (Tr. 125-26). 

H. TME Contracts to Sell Some of the TriEnda Equipment to Formall

On March 23, 2012, TME contracted to sell certain equipment, including one of the

Brown thermoformers, to Formall for $890,000. (DE 113 Stip. 8; Ex. 1). The purchase order

(“the Formall Agreement”) described what Formall purchased as follows (including

handwritten modifications):

13 At one point, Lee asserted that the west parts room housed the spare parts to the west thermoformer,

while the east parts room housed the spare parts to the east thermoformer, stating “[t]hat’s what they told me

anyway.” (Tr. 130-31). However, at other points in his testimony, Lee described the two parts rooms as Krohn

describes them—that the west parts room was used as a maintenance shop for servicing the thermoformers, and the

east parts room was used more as a bone yard to store old parts. (Tr. 45, 47, 59, 61, 93). And Jones, too, referred to

the two parts rooms as “the maintenance room or the parts room.” (Tr. 225-26, 228-29). 

10
1 2009 Brown 114 x 210 4 Station Twin Sheet Thermoformer $850,000.00

To Include Vacuum Pumps and Cooling Tunnels

Scamatics [sic], manuals, clamp frame, vacuum pumps

24 EAC [sic] Temperature Control Unit the Bank with Brown Thermoformer $40,000.00

3000 AMP Power Panel 

Conveyors in front of machine and to side of machine

Wiring from switch gear to machine to include bus bar from switch gear to Power Panel

ALL Brown spare parts

1) If more than 24 temp control units are located in bank at the 

 thermoformer, the additional units will be included in this purchase.

(DE 113 Stip. 8; Ex. 1). The thermoformer that Formall purchased was known as the “west”

thermoformer and was located on the west side of the TriEnda space. (DE 113 Stip. 9; Ex. 7). 

The Formall Agreement provided that the equipment was being transferred free and clear of

any liens or encumbrances. (DE 113 Stip. 12). 

Formall paid TME for the equipment it purchased through four electronic payments

dated March 23, 2012 ($100,000), April 5, 2012 ($150,000), and May 14, 2012 ($637,500 and

$2,500). (DE 113 Stip. 13). Full funds for the equipment that Formall purchased were paid by

Formall to TME as of May 14, 2012. (DE 113 Stip. 14). Therefore, title to the equipment that

Formall purchased from TME passed to Formall no later than May 14, 2012. (DE 113 Stip.

15). 

I. TME Contracts to Sell the Other Brown Thermoformer to Vantage Plastics

On March 27, 2012, four days after the sale to Formall, TME contracted to sell the

other Brown thermoformer, that is, the “east” thermoformer, to Vantage Plastics. (DE 113

Stips. 10, 11; Ex. 2). The purchase order (“the Vantage Plastics Agreement’) describes what

Vantage Plastics purchased as follows: 

1 2009 Brown 114 x 210 4 Station Twin Sheet Thermoformer $850,000.00

To Include Vacuum Pumps and Cooling Tunnels

Scamatics [sic], manuals, clam frame, vacuum pumps

30 AEC Temperature Control Units $40,000.00

11
(DE 113 Stip 10; Ex. 2). Vantage Plastics did not remove any bus duct from the Marion T

facility. (Tr. 108, 222). 

J. TME, Spara/Lexington, and Marion T Enter Into the Marion T Agreement

After TME had sold the TriEnda equipment to third parties (Formall and Vantage

Plastics), a dispute arose between TME and Spara/Lexington over the ownership of the

equipment, which resulted in a lawsuit filed in the Cuyahoga County Court of Common Pleas,

Case No. 779257. (DE 113 Stip 16). Meanwhile, Marion T’s dispute with Spara/Lexington

over unpaid rent was still pending. (DE 113 Stip. 17). In this context, Lee began strategizing

closely with TME and its owner and president, Kruschke, to obtain compensation from

Spara/Lexington. (DE 113 Stip. 17). 

TME, Spara/Lexington, and Marion T eventually entered into settlement negotiations

to resolve their respective disputes in an effort to bring the overlapping claims against

Spara/Lexington to a close. (DE 113 Stip. 18). The agreement between TME and Marion T

was relatively simple: TME would get the equipment specified in the agreement between

TME and Marion T, TME would pay Marion T $80,000 to cover a portion of the rent due on

the building, and the equipment not specified would be owned by Marion T in lieu of rent. 

(DE 113 Stip. 19). TME, Spara/Lexington, and TME negotiated a contract that eventually was

signed and dated May 18, 2012 (“the Marion T Agreement”).14 (DE 113 Stip. 20).

14 In October 2012, after Vantage Plastics attempted to remove the equipment it had purchased and Lee

prevented it from doing so, TME discovered that it and Marion T had signed the wrong version of the Marion T

Agreement. (DE 113 Stip. 29). In litigation between Marion T and TME over the Marion T Agreement, this Court

found that the version signed by Marion T and TME did not actually reflect their agreement. (DE 113 Stip. 102; DE

48). The Court then reformed the Marion T Agreement to declare the third draft of the Agreement was controlling. 

(DE 48). The language from the Marion T Agreement included here is as reformed by the Court.

12
 The Marion T Agreement provides that the following equipment was permitted to be

removed and sold by TME:

3. TM & E shall remove and sell only the following items of equipment:

 a. Two Brown Thermoformers with cooling tunnels and roof mounted a/c units attached to

the machine and all temp control units the temp control units from the Maac

Thermoformer

 b. spare parts currently in the building for the west Thermoformer only. 

 c. Only one bus ducting from the west Thermoformer to Transformer or switch gear. Does

not include transformer or switch gear. If affects any other alarms, heat, lights, or other

factory functions[,] client will repair or modify. No bus duct to be removed on east

Thermoformer.

 d. Cumberland 100 HP Grinders including cyclone dust collectors. All material including

scrap regrind, floor sweepings, rejected parts, finish sheets, finished parts, all plastics

materials in the building.

 e. One CMM Machine.

 f. One plastimeter. (“specified equipment”)

4. In further satisfaction for occupying the building, all the right, title and ownership of the

equipment, other than that specified (and except tooling) shall be the exclusive property of

Marion T.

5. The specified equipment shall be removed at the expense of TM & E at the first electrical

disconnect.

(DE 113 Stip. 30; Ex. 4; DE 48).

K. Lee Directs Jones to Move Items and Barricade the Doors to the Parts Rooms

When Lee learned that Formall was coming to the Marion T facility to remove the

equipment it had purchased, Lee directed Jones to stack skids in front of the doors to both parts

rooms to prevent Formall from entering those rooms, and he also told Jones that Formall was

not to take any spare parts. (DE 113 Stip. 22; Tr. 227). At trial, Lee claimed that this was to

secure the area, so that “everybody [presumably, Vantage Plastics and Formall], got exactly

13
what they paid for.”15 (Tr. 97). Jones, at Lee’s direction and with the help of his crew (all past

Thompson/RCA employees), moved items that had been shown to Formall during its visits into

the barricaded parts rooms or to the Marion T side of the building. (Tr. 227-28). 

Specifically, Jones claimed that he moved five to 10 skids of parts that Marion T had

salvaged from the Thompson/RCA operations out of the east parts room and into the Marion T

side of the building.16 (Tr. 227-28). Jones stated that the only items that remained in the east

parts room were left from TriEnda. (Tr. 227-28). Jones then barricaded the doors to the east

parts room pursuant to Lee’s orders. (Tr. 228). Jones also barricaded the doors to the west

parts room at Lee’s direction, even though Jones admitted that “all the stuff that was left in

there was stuff that worked on the thermoforming equipment.” (Tr. 229). 

L. Formall Removes the Equipment From the Marion T Facility

On May 21, 2012, Krohn and a crew from Formall arrived at the Marion T facility to

remove the equipment it had purchased from TME.17 (DE 113 Stip. 21). However, when

Formall arrived, there was no power or water in the facility.18 (DE 113 Stip. 21; Tr. 52, 135,

15 Lee claimed that Formall was told that if it believed anything in the parts rooms was Formall’s, to let

Marion T know, and that “we’ll go in there with you and get it and you can take it.” (Tr. 53). There is no evidence

besides Lee’s testimony, however, to support this claim, and Lee’s testimony on this point is less than credible. 

Furthermore, there was never any dispute that Formall purchased the parts to the west thermoformer, and Marion T

knew at least some of Formall’s parts were inside the parts rooms when it barricaded the doors. (See Tr. 97, 102; 

Exs. 1, 4). 

16 However, at the trial between TME and Marion T in 2014, Lee was asked whether there were any assets

in the two parts rooms other than what TriEnda had brought to the facility, and Lee responded: “Well, TriEnda

leased it, and TriEnda, I assume, brought the parts there.” (Tr. 138). 

17 Formall had sent a crew a week earlier, but while they were en route, they received a call from Krohn

stating that he had just learned they would not be allowed to enter the building. (Tr. 326). The crew then turned

around and went home, returning a week later. (Tr. 326)

18 Lee knew that there was no electricity in the TriEnda space at the time, as TriEnda had not paid its

electric bill. (Tr. 136-37). Lee had no idea that the water was turned off in the TriEnda space, as that space was

separately metered. (Tr. 136). 

14
326). This caused Formall to delay its start of the removal process, as it had to locate, rent, and

install generators to power the space. (Tr. 326-27). Formall had to bring in water for its crew

so that they could manually flush the toilets using buckets of water. (Tr. 135, 327). Also,

Formall initially did not have access to the building for the extended hours its crew planned to

work. (Tr. 327-28). Eventually, to gain access, Formall agreed that it would pay Marion T’s

security personnel for time beyond a 40-hour workweek. (Tr. 327-28).

Once power was restored in the TriEnda space, Krohn noticed that the area did not look

like it did on the multiple trips that Formall had taken to the Marion T facility to inspect the

equipment. (Tr. 328-29). Rather, spare parts and some of the accessories to the thermoformers

had been moved. (Tr. 328-29). When Krohn asked Jones where the missing parts and

accessories were and why things had been moved, Jones denied that anything had been moved. 

(Tr. 329-30).

Eventually, Krohn went looking for the missing parts. (Tr. 398). First, he squeezed

through the barricade into the east parts room, and he either looked into the west parts room or

was able to enter that room as well. (Tr. 395). He observed that a significant number of spare

parts were missing or had been moved; some parts that had been located in or around the west

thermoformer had been moved into the east parts room. (Tr. 395). Krohn also went looking in

the Marion T side of the building for the missing parts, despite that the building lacked

electricity, and despite that he had been instructed not to go in that portion of the building. (Tr.

298, 398). Krohn eventually found the skids of missing parts back in a dark room on the

Marion T side of the building. (Tr. 398). When Krohn confronted Jones with this evidence,

Jones admitted to having moved the skids of parts there at Lee’s direction. (Tr. 399). 

15
Eventually, Formall moved the skids barring the doors to the parts rooms and then

removed the spare parts. (DE 113 Stip. 23). Jones, who was off site at the time, received a call

from another security guard informing him that Formall had moved the skids and was

removing items from the barricaded rooms. (Tr. 214, 241-42). When Jones arrived at the

facility, he made Formall put everything back that he thought was not a spare part to a

thermoformer. (DE 113 Stip. 24). Some items, such as taps and dies, however, were buried in

the front of the truck. (Tr. 229-30). A supervisor from Formall promised Jones that he would

bring these items back once the truck was unloaded. (Tr. 229-30). Jones released the truck as

soon as Formall removed what it could and had promised to bring back the other items.19 (Tr.

230). Jones confirmed that Formall later returned the taps and dies as promised, even though

the taps and dies worked on the thermoformer.20 (Tr. 229-30). Formall took everything that

Jones considered to be a spare part to either Brown thermoformer and returned what Jones said

was not a spare part. (Tr. 214). 

On May 28, 2012, which was Memorial Day, Jones informed Lee that Formall had

removed all the spare parts, that he had stopped Formall from taking other items, and that he

had made Formall put the non-parts items back. (Tr. 242). According to Lee, Jones called him

and told him that Formall had “broke into” the facility; took items out the back door where the

loading docks were, rather than the front door that Formall had been using where Jones’s

checkpoint was located; and loaded the items on semi trucks. (Tr. 53, 216-17). Within the

19 According to Jones, nothing left the facility unless Jones or one of the other two security guards said it

was okay. (Tr. 240). 

20 Although Formall believed it had purchased the taps and dies, Krohn instructed his project manager to

cooperate with Jones to keep the peace. (Tr. 333-34). 

16
week, Lee came to the Marion T facility to inspect what Jones had reported to him; Formall

was still working on site at the time. (Tr. 242, 325, 328). Lee never informed Formall that he

believed it had taken any items that it was not permitted to take.21 (Tr. 55, 242). 

Formall removed some, but not all, of the bus duct needed to power the west

thermoformer that it had purchased.22 (DE 113 Stip. 25). Marion T refused to allow Formall

to take all of the bus duct to the west thermoformer. (DE 113 Stip. 26). Formall estimates that

it was not permitted to take approximately 150 feet of 1200 amp bus duct and 400 feet of 800

amp bus duct. (Tr. 475-77; Ex. 5 at 302; Ex. F-1). Given what was left behind, Formall could

not operate the thermoformer at full capacity in twin-sheet mode—that is, it could only operate

the thermoformer in single-sheet capacity—because Formall did not have sufficient electrical

equipment to power the entire machine. (Tr. 361-62). Just to get the thermoformer to operate

in single-sheet capacity, Krohn had to reconfigure the bus duct Formall did take to be able to

run one of the ovens and power the rest of the machine. (Tr. 489). 

Lee testified that Kruschke contacted him during Formall’s and Marion T’s dispute

about the bus duct, and told him that Formall was willing to pay an additional $10,000 for the

remaining bus duct to the west thermoformer. (Tr. 53). Lee said that Formall then later

21 Formall was on site at the Marion T facility for nearly a month, working long hours every day to

disassemble the huge thermoformer and to gather all the spare parts. (DE 113 Stip. 27). Krohn was at Marion T at

the beginning of the process and at the end, and he was in communication with his crew on site. (Tr. 331-32). 

When Krohn was not at Marion T, he was in Tennessee receiving and examining the equipment and parts that were

unloaded from the trucks. (Tr. 331-32). He testified that nothing was received or unloaded that was not

thermoforming equipment, parts, or used in the service of a thermoformer. (Tr. 331-32). Lee, too, agreed that

everything Formall took could be used in the operation of the thermoformer it had purchased. (Tr. 130, 132). 

22 Despite the parties’ stipulation that Marion T refused to allow Formall to remove all of the bus duct,

Jones testified that Formall took all of the bus duct to the west thermoformer and that there was no bus duct left at

the facility that went to the Brown thermoformer. (Tr. 217-18). Jones testified that he called Lee and asked about

the bus duct, and that Lee said Formall was allowed to take it. (Tr. 217). However, on cross examination, when

confronted with his earlier deposition testimony, Jones agreed that Formall had not taken everything that was listed

on the quote Marion T obtained from Rex Collins Electric, Inc., in August 2012. (Tr. 234-37; Ex. 9).

17
retracted this offer, which resulted in Lee telling Kruschke to “forget it” and that “[t]he bus

duct is not leaving.” (Tr. 53). At another point in his testimony, Lee stated that he was asked

to sell the remaining bus duct to the west thermoformer for $10,000, but that he “never

considered selling it.” (Tr. 76). 

Krohn agrees that he told Kruschke that Formall would pull out of the deal if it did not

get all three lines of bus duct to the west thermoformer. (Tr. 452-53). Krohn denies, however,

that he ever made an offer to pay an additional $10,000 for the remaining bus duct, as he

adamantly testfied that Formall had purchased all of the bus duct to the west thermoformer

under the Formall Agreement. (Tr. 452-53)

M. Marion T Calls the Police

On July 16, 2012, approximately six weeks after Formall had left the Marion T facility,

Marion T (through its manager, Lee) contacted the Marion County Police Department and

reported that Formall and TME had stolen items that were not theirs to take. (DE 113 Stip.

28). Marion T never contacted Formall, either while Formall was still on site or after it had

left, before calling the police. (Tr. 89, 365). Formall only learned there was a problem when

the police appeared at its Tennessee facility several months after Formall had finished its

removal of the equipment at the Marion T facility. (Tr. 363, 365). When at the Formall site,

the police took photographs of what Formall had removed from the Marion T facility. (Tr.

363; Ex. 5 at 207-26).

The investigating officer wrote a case report on the matter after interviewing Lee,

Krohn, Kruschke, one of Marion T’s security guards, and a representative from TriEnda.23

23 Neither the police officer, Kruschke, the security guard, or the TriEnda representative testified at trial.

18
(Ex. 5). The report summarizes Lee’s allegations that he was missing $200,000 to $300,000 in

equipment after Formall left, that Formall had removed the barricades to the parts rooms

without permission, and that Formall went into the Marion T side of the facility after being told

not to. (Ex. 5 at 2). It also summarizes the officer’s interview with Krohn, who stated that the

Formall Agreement was for all of the electrical equipment “from the main switch gear on” that

supplied the thermoformer that Formall was purchasing. (Ex. 5 at 3-4). Krohn described how

Marion T had moved the parts that Formall had purchased behind barricaded doors and to a

hidden, dark corner on the Marion T side of the facility. (Ex. 5 at 4). 

The report also states that the police officer interviewed Kruschke via telephone. (Ex.

5 at 6). In that interview, Kruschke stated that “the contract” was simple in that it stated “they

would get at least one bus duct.”24 (Ex. 5 at 6). He said that while “they” first thought there

was just one bus duct to the Brown thermoformer, Krohn informed him that the thermoformer

had three lines of bus duct. (Ex. 5 at 6). Kruschke said that Krohn told him that Formall

needed all three lines or it would pull out of the deal, and that Krohn offered another $10,000

for “the third bus duct.” (Ex. 5 at 6). Kruschke said that he then called Lee, and Lee agreed to

let Formall have “the third bus duct” and that he would tell Jones to let Formall remove the bus

duct. (Ex. 5 at 6). Kruschke added that he did not know why Lee was making these claims, as

he had advised Lee that he would make good money on the bus duct and that TME would pay

him if Formall did not. (Ex. 5 at 6).

Kruschke said that several weeks later, Lee contacted him, asking for “the money.” 

24 The report does not identify which contract Kruschke is speaking about or who exactly he was referring

to. Presumably, the “they” is Formall, but “the contract” could have been either the Formall Agreement or the

Marion T Agreement. 

19
(Ex. 5 at 6). Kruschke responded that Formall had not yet sent him the money, but that if Lee

wanted him to, Kruschke would send Lee the money immediately. (Ex. 5 at 6). Lee then got

“salty” with Kruschke and said that he would no longer honor the agreement. (Ex. 5 at 6). 

Kruschke also told the officer that Krohn had called him to report that Marion T was

hiding the spare parts that Formall had purchased. (Ex. 5 at 7). Kruschke then contacted Lee,

informing him that he could not hide these parts because TME had sold the parts to Formall. 

(Ex. 5 at 7). Kruschke told Lee that there was nothing Lee could do with the parts other than

scrap them because they were unique to the Brown machines, that Formall had pictures of all

of the parts it had purchased, that Krohn had no reason to lie, and that all of the parts Lee was

complaining about went to the Brown machine. (Ex. 5 at 7). Kruschke said that Lee then

made the parts available to Formall for removal the next day. (Ex. 5 at 7).

N. The Allegedly Converted Spare Parts and Miscellaneous Items

At trial, Marion T produced an “Inventory List” of the items that were in the two parts

rooms that Lee believed Formall converted, together with their estimated value. (Ex. 10; Tr.

110-13). Lee admitted, however, that there was no actual inventory maintained concerning the

two rooms. (Tr. 110-13). The “Inventory List” for the east parts room includes: five

temperature control units ($13,000); skid of brass fittings ($5,000); skid of stainless steel

fittings ($5,000); skid of brass and stainless steel fittings ($5,000); four to 10 skids of parts for

the east thermoformer ($102,000); and other miscellaneous parts, including nuts, bolts, and

fittings ($10,000). (Ex. 10). The “Inventory List” for the west spare parts rooms reflects: a

wooden Lazy Susan ($10,000); four Lawson cabinets ($20,000); eight cabinets with bins

($15,000); a roll-around ladder ($5,000); an air conditioner tool bench ($10,000); three

20
lockable cabinets ($50,000); and other miscellaneous parts, including nuts, bolts, and fittings

($12,000). (Ex. 10). Lee testified that the values he assigned to these parts were his “best

guess” of what the parts might have cost. (Tr. 110-13). 

Marion T’s list of the property that Formall allegedly converted and such property’s

value, however, has dramatically reduced since the trial. In its proposed findings of fact and

conclusions of law submitted after the trial, Marion T seeks just $20,000 in total for the

allegedly converted spare parts. (DE 124 at 10). This is comprised of “a skid of stainless steel,

a skid of brass, and a skid of copper fittings” that had a “value of $5,000 each”; and “the

ladder, Lazy Susan, equipment, and other parts removed by Formall” with “a combined value

of $5,000.” (DE 124 at 10). The three skids of fittings are the parts that Marion T claims it

salvaged from the Thompson/RCA operations that Formall removed from the east parts room 

(Tr. 46-47, 142-43, 219, 248-49), and the other miscellaneous items were removed by Formall

from the west parts room (Tr. 47-49). 

O. The Allegedly Converted Bus Duct

Marion T contends that Formall converted bus duct to the west thermoformer when it

removed a portion of the bus duct. (Tr. 412-13). Conversely, Formall claims that Marion T

converted a portion of the bus duct when it refused to allow Formall to remove all of the bus

duct to the west thermoformer. (DE 113 Stip. 26; Tr. 416). 

1. Gibbons’s Testimony About the Bus Duct and Power Supply

Marion T called as a witness Joseph Gibbons (“Gibbons”), a project engineer/project

manager for Rex Collins Electric, Inc., an industrial and commercial electrical contractor. (Tr.

159-60, 181). Gibbons has a bachelor’s degree in electrical engineering technology. (Tr. 180). 

21
In 2007, Gibbons designed for TriEnda the installation of the electrical equipment to connect

the thermoformers to the electrical supply in the Marion T building. (Tr. 159-60, 165, 180). 

Gibbons also prepared a quote for Marion T in August 2012 to provide and install the bus duct,

tap boxes, and power panels that were removed by Formall. (Tr. 64; Ex. 9). The work

proposed by the August 2012, however, was never performed. (Tr. 65).

The August 2012 proposal, which was priced at $201,380, included the provision and

installation of “feeder duct,” which is also referred to as bus duct; “cable tap boxes”; and

“switchboard.” (Tr. 173; Ex. 9). Specifically, the quote called for installation of at least 260

feet of 3000 amp bus duct, at least 150 feet of 1200 amp bus duct, two 3000 amp cable tap

boxes, two 1200 amp cable tax boxes, one 3000 amp switchboard (for the “end” of the 3000

amp bus duct), and one 1200 amp switchboard (for the “end” of the 1200 amp bus duct). (Tr.

173; Ex. 9; Ex. A at 107, 108). No “powerhouses” or “transformers” were included in the

proposal. (Tr. 173; Ex. 9). 

 Gibbons was asked to explain how a thermoformer—specifically, the west

thermoformer—received power. (Tr. 166; Ct. Ex. 125). Gibbons testified as follows: A

tremendous amount of power, 38,000 volts, traveled into the Marion T facility from a large

substation, which was owned by the utility, located outside on the south end of the facility; the

power was too high in voltage. (Tr. 166, 170, 184, 185-86; Ct. Ex. 1). From the utility

substation located outside the facility, the power went to a main substation, which was owned

by Marion T and located inside the building. (Tr. 166, 184; Ct. Ex. 1). The main substation

then stepped down the power, which was too high in voltage, to 12,470 volts. (Tr. 166, 184;

25 The Court asked Gibbons to draw a diagram to illustrate how the power flowed into the Marion T

building and traveled to the west transformer, and that drawing is the Court’s Exhibit 1. (Tr. 182-83; Ct. Ex. 1).

22
Ct. Ex. 1). From there, the power traveled throughout the facility to various “powerhouses” in

the facility, one of which was called the “penthouse.” (Tr. 166-67, 184; Ct. Ex. 1). In the

penthouse, the power went through a “transformer,” which stepped it down to a useable 480

volts. (Tr. 166-67, 184; Ct. Ex. 1). From the transformer, the power traveled to a

“switchboard,” which was located upstairs in the penthouse. (Tr. 167, 184; Ct. Ex. 1). From

the penthouse, the power went to the building’s “distribution gear” or “switch gear,” which

contained circuit protection and could turn something on and off. (Tr. 168, 184-85; Ct. Ex. 1). 

From the switch gear, power went through large copper wire conductors to a “tap box”

that was directly connected to a “feeder duct.” (Tr. 168-69; Ct. Ex. 1). Feeder duct, also

referred to as bus duct, consists of “substantial sized copper bus bars,” which come in 10-foot

sections and are quite valuable. (Tr. 161, 168-69, 193). The power then ran from the first tap

box through the bus duct to the second tap box, and down through conduit via wire to connect

to a “switchboard”—also commonly referred to as a “power panel”—on the machine.26 (Tr.

163, 168-70, 173, 175, 181, 184; Ct. Ex. 1). This power panel, then, was the “control center

for the machine.” (Tr. 170; see Ex. A at 107). 

When asked what he considered to be the “first electrical disconnect from the

building,” Gibbons identified the large substation located outside of the facility. (Tr. 172-73). 

When asked to identify the “first point of disconnect” or “first electrical disconnect” from the

machine, Gibbons responded, “the switch that feeds the machine,” that is, the “switchboard.” 

(Tr. 174-75, 198 (stating that “from the machine back,” the “first junction box” would be the

26 Upon further questioning, Gibbons agreed that the switchboard could also be called a “switch gear.” (Tr.

195). He also said that the terms “switch gear” and “power panel” are used interchangeably by many people. (Tr.

196).

23
tap box above the switchboard)). Gibbons explained that power flows “downstream” from the

utility substation to the thermoformer, and that referring to power from the machine to the

substation would be “upstream.” (Tr. 200). 

Gibbons was also asked what equipment would be encompassed in the “[w]iring from

switch gear to machine to include bus bar from switch gear to power panel.” (Tr. 177-78). 

Gibbons responded that the only bus duct that existed ran from the switch gear “upstairs” in

the penthouse to the “power panel which is located out at the machine.” (Tr. 178, 199-200). 

Gibbons testified that there was no bus duct between the power panel and the thermoformer,

only wiring. (Tr. 178, 199-200). 

Gibbons testified that there were two lines of bus duct, a 3000 amp run and a 1200 amp

run, feeding the west thermoformer, and that the 3000 amp line, by itself, would not operate

the machine. (Tr. 193, 196). Gibbons admitted, however, that he did not remember the exact

machine and that he was relying on “what was quoted to the machine.” (Tr. 196). 

The Court finds that Gibbons generally was a knowledgeable witness about the power

supply to the west thermoformer. However, he seemed to rely on his 2012 written quote,

rather than his own recall of the power supply’s configuration, which resulted in him

qualifying his testimony to some extent.27 Ultimately, Gibbons’s description of the power

supply to the west thermoformer was helpful, but not entirely accurate, as he testified that the

west thermoformer was powered by just two lines of bus duct. The parties, however, do not

27 See, e.g., Tr. 161 (“I could not remember if that was included, yes.”), 162 (“I can’t remember specifically

on that feeder duct.”), 162-63 (“I can’t remember that machine specifically, but yes.”), 184 (“And if I remember

right . . . .”), 185 (“I can’t remember how the 1200-amp feed figured in.”), 186 (“I don’t remember the break out of

what each panel fed.”), 187 (“I don’t remember exactly . . . but I do remember 1 machine in that corner.”), 193

(“[J]ust looking at what I proposed from what I remember, there were 2 power panels . . . .”), 196 (“I don’t

remember the exact machine, but that was what was quoted to the machine.”). 

24
dispute that the west thermoformer was actually powered by three lines of bus duct. 

2. Krohn’s Testimony About the Bus Duct and Power Supply

Krohn, too, testified about how the west thermoformer received power in the Marion T

facility.28 Krohn explained that from the facility’s main switch gear, three lines of bus duct ran

to three power panels that were located six to eight feet from the west thermoformer. (Tr. 340-

41, 406; Ex. F-129). These lines consisted of: (1) one line of 3000 amp bus duct that ran to a

3000 amp power panel; (2) one line of 1200 amp bus duct that ran to a 1200 amp power panel;

and (3) two parallel runs of 800 amp bus duct that connected to a 1200 amp bus duct that ran to

a 1200 amp power panel. (Tr. 341-43, 466; Ex. F-1). These three lines of bus duct were due to

the thermoformer’s extraordinary power requirements; the lines powered different aspects of

the machine, and all three lines were required for the machine to operate in its full capacity,

that is, in twin-sheet mode. (Tr. 341, 343, 489-90). 

Ultimately, Formall removed all of the 3000 amp bus duct, several short runs of the

1200 amp bus duct, the 3000 amp power panel, and the two 1200 amp power panels. (Tr. 412,

453-54, 473-77). Formall did not, however, remove the 400 feet of 800 amp bus duct or 150

feet of 1200 amp bus duct. (Tr. 352, 386-87, 415-16, 473-77). Marion T—in particular,

Jones—refused to allow Formall to remove that portion of the bus duct. (DE 113 Stip. 26; Tr.

416). 

28 The Court finds that Krohn, too, was very knowledgeable about the power supply to the west

thermoformer. In contrast to Gibbons, Krohn was able to recall specific details of the configuration of the power

supply, explained what bus duct Formall had removed, and correctly described the three lines of bus duct powering

the west thermoformer. Accordingly, the Court finds that Krohn was a very credible witness about the bus duct and

power supply to the west thermoformer. 

29 Krohn drew two diagrams to illustrate how the power flowed into the Marion T building and traveled to

the west transformer, and those drawings are the Court’s Exhibits F and F-1. (Tr. 275-76; Ct. Exs. F, F-1).

25
Formall obtained quotes from two vendors, Graybar Electric Company, Inc., and

Grainger, Inc., concerning the value of the bus duct that Formall believed it had purchased but

that Marion T refused to let Formall remove. (Tr. 351-53; Exs. B, C). These estimates, which

were for new bus duct, uninstalled, were $129,511.72 and $132,200, respectively. (Exs. B, C).

II. CONCLUSIONS OF LAW

In its ruling on Formall’s motion for summary judgment, the Court identified the

following items of disputed ownership that remained for trial: (1) whether Formall’s purchase

of “ALL Brown spare parts” in the Formall Agreement entitled Formall to all of the spare parts

to both thermoformers, or just all of the spare parts to the west thermoformer that Formall

purchased; (2) whether Formall’s purchase of “ALL Brown spare parts” in the Formall

Agreement included certain items used in maintaining or servicing the thermoformer, including

a Lazy Susan, Lawson cabinets, cabinets with bins, lockable cabinets, a roll-around ladder, and

an air conditioner tool bench (the “miscellaneous items”); and (3) whether Formall or Marion

T owned the bus duct that was removed or retained by the other. (DE 88 at 25). The Court

will begin its consideration of these disputes by reviewing the standards under Indiana law

pertaining to a claim of conversion and interpretation of a contract.30

A. The Claim of Conversion

Each party claims that the other converted its property in violation of Indiana law. 

“The elements necessary to establish a civil cause of action for conversion are similar to those

30 Formall cites the Indiana rules of contract construction in its proposed findings of fact and conclusions of

law, and Marion T does not oppose Formall’s doing so. The TriEnda Lease and the Marion T Agreement are silent

as to governing law, but the Formall Agreement states it is to be interpreted in accordance with Ohio law. (Ex. 1 at

2). As the Court determined in its ruling on Formall’s motion for summary judgment, the Ohio rules of contract

construction are similar to Indiana’s rules, see Savedoff v. Access Grp., Inc., 524 F.3d 754, 762-65 (6th Cir. 2008);

Mulch Mfg., Inc. v. Advanced Polymer Sols., LLC, 947 F. Supp. 2d 841, 857-58 (S.D. Ohio 2013), and thus the

Court will cite to Indiana law in this Opinion and Order. 

26
in the criminal conversion statute and, like all civil claims, must be proven by a preponderance

of the evidence.” Meridian Fin. Advisors, Ltd. v. Pence, 763 F. Supp. 2d 1046, 1058 (S.D. Ind.

2011) (citing McKeighen v. Daviess Cty. Fair Bd., 918 N.E.2d 717, 723 (Ind. Ct. App. 2009));

see also Anderson v. Indianapolis, Ind. AAMCO Dealers Advert. Pool, 678 N.E.2d 832, 838

(Ind. Ct. App. 1997) (“The elements necessary to establish a civil cause of action for

conversion are found in the criminal conversion statute.” (citation omitted)). 

“To prove conversion, a plaintiff must demonstrate that the defendant ‘exert[ed]

unauthorized control over property of another[.]’” Meridian Fin. Advisors, Ltd., 763 F. Supp.

2d at 1058 (alterations in original) (quoting Ind. Code § 35-43-4-3). Stated another way, the

tort of conversion “consists either in the appropriation of the personal property of another to

the party’s own use and benefit, or in its destruction, or in exercising dominion over it, in

exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from

his possession, under a claim and title inconsistent with the owner’s.” Nat’l Ass’n of Sys.

Adm’rs, Inc. v. Avionics Sols., Inc., No. 1:06-cv-159-SEB-JMS, 2008 WL 140773, at *14 (S.D.

Ind. Jan. 10, 2008) (quoting Computs. Unlimited, Inc. v. Midwest Data Sys., Inc., 657 N.E.2d

165, 171 (Ind. Ct. App. 1995)). “Mens rea . . . is not an element of tortious conversion.”

Computs. Unlimited, Inc., 657 N.E.2d at 171 (citation omitted); see also MNW, LLC v. Mega

Auto Grp., Inc., 884 F. Supp. 2d 740, 765 (N.D. Ind. 2012). “Good faith is no defense.” 

Computs. Unlimited, Inc., 657 N.E.2d at 171 (citation omitted). 

Enhanced civil damages are available for victims of criminal conversion. Ind. Code §

34-24-3-1. “In any criminal conversion action, criminal intent is an essential element that must

be proven.” JET Credit Union v. Loudermilk, 879 N.E.2d 594, 597 (Ind. Ct. App. 2008)

27
(citation omitted); see Meridian Fin. Advisors, Ltd., 763 F. Supp. 2d at 1058 (“Unlike with

criminal conversion, mens rea is not an element of tortious conversion.” (citing Nat’l Ass’n of

Sys. Adm’rs, Inc., 2008 WL 140773, at *14)). “To establish this element of the crime of

conversion, a plaintiff must show that the defendant was aware of a high probability his control

over the plaintiff’s property was unauthorized.” JET Credit Union, 879 N.E.2d at 597 (citation

omitted). 

B. Interpreting the Lease and Agreements

In assessing whether either party converted the other’s property, the Court must

interpret the terms of the TriEnda Lease, the Formall Agreement, and the Marion T Agreement 

to determine who was the rightful owner of the disputed equipment. “[T]he goal of contract

interpretation is to ascertain the parties’ intent.” BKCAP, LLC v. CAPTEC Franchise Tr.

2000-1, 572 F.3d 353, 359 (7th Cir. 2009) (citations omitted); see also Nikish Software Corp.

v. Manatron, Inc., 801 F. Supp. 2d 791, 800 (S.D. Ind. 2011); Trustcorp Mortg. Co. v. Metro

Mortg. Co., 867 N.E.2d 203, 212-13 (Ind. Ct. App. 2007). “In the case of a written contract,

the parties’ intent is determined by looking first to the plain and ordinary meaning of the

contract language.” BKCAP, LLC, 572 F.3d at 359 (citations omitted); see also USA Life One

Ins. Co. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997).

 “If the contract language is clear and unambiguous, the document is interpreted as a

matter of law without looking to extrinsic evidence.” BKCAP, LLC, 572 F.3d at 359 (citations

omitted). “The Court must read the contract as a whole, construing language to give meaning

to all of the contract’s words, terms, and phrases.” BMD Contractors, Inc. v. Fid. & Deposit

Co. of Md., 828 F. Supp. 2d 978, 984 (S.D. Ind. 2011) (citing Trustcorp Mortg. Co., 867

28
N.E.2d at 213). “If, however, the contract language is ambiguous, an examination of relevant

extrinsic evidence is appropriate in order to ascertain the parties’ intent.” BKCAP, LLC, 572

F.3d at 359 (citations omitted).

C. Formall Did Not Exercise Unauthorized Control 

Over the Spare Parts to the East Thermoformer 

First, Marion T acknowledges that Formall was entitled to remove the spare parts to the

west thermoformer, but claims that Formall converted the spare parts to the east thermoformer

when Formall took all of the spare parts to both Brown thermoformers. Formall disagrees,

arguing that under the Formall Agreement it purchased all of the spare parts to both Brown

thermoformers. 

Formall acquired its rights to the spare parts through the Formall Agreement, which it

entered into with TME on March 23, 2012. (See DE 113 Stip. 8; Ex. 1). Under the Formall

Agreement, Formall purchased, among other things, the west thermoformer and “ALL Brown

spare parts.” (DE 113 Stip. 8; Ex. 1). Formall paid for the equipment in full as of May 14,

2012. (DE 113 Stips. 13, 14). 

On May 18, 2012, about two months after entering into the Formall Agreement with

Formall, TME entered into the Marion T Agreement with Marion T. (DE 113 Stip. 20; Ex. 4). 

The Marion T Agreement gave TME the right to remove and sell the “spare parts currently in

the building for the west Thermoformer only,” with the right, title, and ownership of any

remaining spare parts becoming the property of Marion T.31 (DE 113 Stip. 3; Ex. 4 at 2-3).

In its ruling on Formall’s summary judgment motion, the Court concluded that the

31 The Court has already concluded in its ruling on Formall’s summary judgment motion that any rights

Marion T had to the disputed spare parts or miscellaneous items arose on May 21, 2012, through entering into the

Marion T Agreement. (DE 88 at 15).

29
meaning of the term “ALL Brown spare parts” as used in the Formall Agreement was

ambiguous. (DE 88 at 20-21). The Court explained that the term could mean all of the spare

parts to either Brown thermoformer in the Marion T facility, or alternatively, it could mean all

of the spare parts to the Brown thermoformer that Formall was purchasing, that is, the west

thermoformer. (DE 88 at 29-21). As such, the Court needed to examine relevant extrinsic

evidence to determine the intent of Formall and TME when entering into the Formall

Agreement. See BKCAP, LLC, 572 F.3d at 359.

Krohn testified that the two Brown thermoformers were identical, and that only three

such thermoformers of that size existed in the world, making their parts interchangeable. (Tr.

367). Krohn has 20 years of experience in the thermoforming industry, he spoke with detailed

knowledge about thermoformers, his testimony was consistent throughout the trial, and his

ability to recall details of specific events was noted throughout the entire trial, making him a

very credible witness. (Tr. 260-61). 

Lee testified that while two thermoformers were similar, they were of different designs

and configurations, making their spare parts unique to each thermoformer. (Tr. 31, 130-33). 

He claimed that the spare parts to the west thermoformer were stored in the west parts room,

and the spare parts to the east thermoformer were stored in the east parts room. (Tr. 13-31). 

As he sees it, then, Formall was not entitled to remove any items from the east parts room. 

Lee admitted, however, that he has only a “basic knowledge” of thermoformers as a

“lay person” and “doesn’t understand it all.” (Tr. 125). Lee also conceded that he was

unaware of any item that was in either spare parts room that would not work on the west

thermoformer. (Tr. 132). And while Lee asserted at trial that there were differences between

30
the two thermoformers, he testified at his deposition in 2013 that he did not know whether the

two thermoformers were identical or not. (Tr. 125-26). Moreover, as concluded earlier, Lee

was a less credible witness than Krohn, as Lee at times contradicted himself or Jones and often

had only a vague recollection of events or stated that he could not recall the events. See

footnote 4 supra. 

The evidence at trial failed to reveal any distinction between spare parts to the west

Brown thermoformer and spare parts to the east Brown thermoformer. Nor did the evidence

support Lee’s assertion that the spare parts to the west thermoformer were stored in the west

parts room and the spare parts to the east thermoformer were stored in the east parts room. 

Rather, the evidence consistently revealed that the west parts room was more of a maintenance

shop that serviced both Brown thermoformers, while the east parts room was a storage area for

existing or obsolete parts to the thermoformers. (Tr. 45, 47, 59, 61, 93, 130-31, 133, 225-26,

228-29; see also DE 124 at 4). This evidence shows that the spare parts were interchangeable

between the two machines, and that the spare parts to the two Brown thermoformers were not

stocked or stored separately. In fact, based on this evidence, it would be impossible to even

identify the spare parts to the west thermoformer from the spare parts to the east thermoformer. 

(See also Ex. 5 at 7). This is all strong evidence that the term “ALL Brown spare parts” was

intended to include all of the spare parts to both thermoformers.

 Also, Krohn credibly testified that obtaining the entire spare parts inventory was a key

incentive for Formall to enter into the Formall Agreement. (Tr. 295). Formall runs its

manufacturing processes 24 hours a day, either five or seven days a week, and Krohn

explained that thermoformers have thousands of parts that are constantly being repaired or

31
needing preventative maintenance, making it a constant struggle to keep the machines

operating 24 hours a day. (Tr. 295-97). Having a good spare parts program helps to keep the

machines running in order to meet customer demands and production schedules. (Tr. 296-97). 

Krohn said that if Formall had purchased the west thermoformer without the spare parts

program, it would have paid much less for the thermoformer because creating its own spare

parts program would have added significant expense. (Tr. 297). Krohn also considered as a

valuable feature of the transaction that TriEnda’s spare parts were well ordered in Akro bins,

Lawson cabinets, and other cabinets. (Tr. 298-99).

Moreover, four days after TME entered the Formall Agreement to sell the west

thermoformer and spare parts to Formall, TME contracted with Vantage Plastics to sell the east

thermoformer. (DE 113 Stip. 10). Vantage Plastics did not acquire any spare parts through the

Vantage Plastics Agreement. (Ex. 2). Most likely, this is because TME had already sold all of

the spare parts to Formall under the Formall Agreement four days earlier. (Ex. 2). Thus, that

TME did not convey any spare parts to Vantage Plastics is further evidence that the term “ALL

Brown spare parts” in the Formall Agreement meant all of the spare parts to both

thermoformers.

Of course, the record is not perfectly clear. Two months after entering into the Formall

Agreement, TME entered into the Marion T Agreement, which allowed TME to remove the

“spare parts currently in the building for the west Thermoformer only,” with the right, title, and

ownership of any remaining equipment becoming the property of Marion T. (DE 113 Stip. 3;

Ex. 4 at 2). It is difficult to square the terms of the Marion T Agreement with the terms of the

Formall Agreement, and there was no testimony at trial from Kruschke, who negotiated both

32
agreements on TME’s behalf. Ultimately, however, the Court concludes that the intent of the

parties to the Formall Agreement, which was first in time, was to convey all of the spare parts

to both thermoformers to Formall. As such, that TME may later have attempted to convey

some of these same spare parts to Marion T, whether mistakenly or otherwise, is not

determinative because by that time TME no longer had title to these spare parts. (Ex. 5 at 7);

see Ind. Code § 26-1-2-403(a) (providing that under Indiana law, a purchaser of goods acquires

all title to which the purchaser’s transferor had power to transfer). 

In any event, in its proposed findings of fact and conclusions of law Marion T seems to

have abandoned its claim that Formall converted the spare parts to the east thermoformer. (See

DE 124). Rather, Marion T’s conversion claim in its proposed findings of fact and conclusions

of law centers on the miscellaneous items, certain items from the east parts room, and the bus

duct that Formall removed. 

For all of these reasons, the Court concludes that Formall’s purchase of “ALL Brown

spare parts” in the Formall Agreement entitled Formall to remove from the Marion T facility

all of the spare parts to both Brown thermoformers, and thus, Formall did not “exercise

unauthorized control over property of another” when it took these parts. MNW, LLC, 884 F.

Supp. 2d at 765. Because Marion T has not establish a required element of tortious and

criminal conversion, Marion T’s conversion claims based on Formall’s removal of spare parts

to the east thermoformer fail.

D. Formall Did Not Exercise Unauthorized 

Control Over the Miscellaneous Items

 Next, Marion T contends that under the Marion T Agreement it acquired title to certain

miscellaneous items that were located with the spare parts to the thermoformers, but that were

33
more generic in nature and used for storing the spare parts or servicing the thermoformers. 

(DE 124 at 10). These items include the Lawson cabinets, cabinets with bins, lockable

cabinets, a roll-around ladder, an air conditioner tool bench, and purportedly, a Lazy Susan

wooden bin. (DE 124 at 10). Marion T contends that Formall converted these miscellaneous

items when it removed them from the facility. Formall disagrees, contending that these

miscellaneous items fall within the scope of the term “ALL Brown spare parts” in the Formall

Agreement. 

As already explained, in ruling on Formall’s summary judgment motion the Court

concluded that the term “ALL Brown spare parts” as used in the Formall Agreement is

ambiguous, and that relevant extrinsic evidence needed to be examined to determine the intent

of Formall and TME when entering into the Formall Agreement. (DE 88 at 23-24). The

evidence at trial revealed that TriEnda had placed the miscellaneous items in the Marion T

facility to support the operation of the Brown thermoformers, but the items were not unique to

the machines. (Tr. 112, 130-33, 138). Krohn considered Formall’s ability to purchase the

miscellaneous items to be a valuable feature of the Formall Agreement because the

miscellaneous items served to store and maintain the spare parts program in good order. (Tr.

298-99). 

Moreover, Jones testified that he made Formall put everything back, or bring

everything back, that was not a spare part to a thermoformer. (DE 113 Stip. 24; Tr. 214-15,

241-42). Lee, too, conceded that all of the miscellaneous items could be used in servicing the

Brown thermoformers. (Tr. 130-32). And while Lee claimed at trial that the miscellaneous

items were worth in excess of $100,000 (Ex. 10; Tr. 110-13), Marion T now indicates in its

34
proposed findings of fact and conclusions of law that the miscellaneous items are worth just

$5,000 in the aggregate (DE 124 at 10). 

Based on the evidence presented, the Court concludes that TME and Formall did not

intend to parse these few miscellaneous items, which were used to store the spare parts or to

service the thermoformers, from Formall’s purchase of “ALL Brown spare parts” in the

Formall Agreement. See Quality Oil, Inc. v. Kelley Partners, Inc., 657 F.3d 609, 613 (7th Cir.

2011) (stating that under Indiana law, a court must read a contract “as a whole and harmoniz[e]

all of its provisions”); Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501

(Ind. Ct. App. 2007) (“The contract is to be read as a whole when trying to ascertain the

parties’ intent, and we will make all attempts to construe the language in a contract so as not to

render any words, phrases, or terms ineffective or meaningless.” (citation omitted)). As such,

the Court concludes that the term “ALL Brown spare parts” in the Formall Agreement included

the miscellaneous items—that is, the Lawson cabinets, cabinets with bins, lockable cabinets, a

roll-around ladder, an air conditioner tool bench, and Lazy Susan wooden bin. 

Therefore, Formall was entitled to remove the miscellaneous items from the Marion T

facility, and thus, Formall did not “exercise unauthorized control over property of another”

when removing these miscellaneous items. MNW, LLC, 884 F. Supp. 2d at 765. Accordingly,

Marion T’s claims of civil and criminal conversion based on Formall’s removal of the

miscellaneous items also fail.

E. Formall Did Not Exercise Unauthorized Control 

Over the Three Skids of Allegedly Salvaged Parts

Marion T contends that when removing the equipment, Formall wrongfully took three

skids of brass, copper, and stainless steel parts that Marion T had allegedly salvaged from the

35
Thompson/RCA operations. Lee and Jones testified that these skids had been stored in the east

parts room during Formall’s visits, but that Marion T moved them to the Thompson/RCA side

of the facility before Formall came to remove the equipment. (Tr. 219, 227, 248-50). Formall

argues that its purchase of “ALL Brown spare parts” included these skids of purportedly

salvaged parts, emphasizing that Formall was allowed to inspect the parts and take pictures of

them during their visits, that it was Formall’s intent to purchase these parts, that Marion T

never said these parts were not for sale, and that Marion T allowed Formall to remove the parts

from the facility. (Tr. 226, 252).

Although Lee and Jones testified that these skids of metal parts were salvaged from

Thompson/RCA, Lee concedes that he instructed Jones to show Formall everything in the

TriEnda portion of the facility during their visits. (Tr. 204, 225-26). Neither Lee, nor Jones,

informed Formall that any items in that space were not TriEnda’s property or not for sale. (Tr.

207-08, 226). 

 When Lee viewed the photos that Formall had taken of the east parts room during its

visits, Lee could not identify any of the alleged $15,000 worth of salvaged metals on skids. 

(Tr. 155-58; Ex. A at 175). Jones, on the other hand, did claim to identify the allegedly

salvaged parts when presented with photos of the east parts room. (Tr. 249; Ex. A at 180). 

However, Jones did not have personal knowledge that the parts were from Thompson/RCA and

could not identify to which equipment they pertained; rather, Jones stated that his crew, who

were past Thompson/RCA employees, had told him they were Thompson/RCA parts. (Tr.

249-50). And at his deposition in 2014, Jones testified that there were no parts or equipment

left over from Thompson/RCA and the building was “[p]retty much vacant,” undermining his

36
trial testimony that these skids were left over parts from Thompson-RCA. (Tr. 204, 250-52). 

Furthermore, Jones let Formall remove these skids of parts from the facility, and Jones testified

that nothing was removed from the facility that was not a spare part to a thermoformer. (DE

113 Stip. 24; Tr. 214, 240, 242). 

 Also, Jones testified that when he and his crew were performing salvage and demolition

in the Marion T facility, they would save the salvaged parts “off to one side.” (Tr. 219). It

defies common sense that Marion T would store its salvaged parts in the TriEnda leased space,

as Marion T contends (Tr. 99-100, 137), when Marion T had 800,000 square feet of its own

space at its disposal. Furthermore, at the trial between TME and Marion T in 2014, Lee was

asked whether there were any assets in the two parts rooms other than what TriEnda had

brought to the facility, and Lee responded: “Well, TriEnda leased it, and TriEnda, I assume,

brought the parts there.” (Tr. 138). Also, Krohn credibly testified that the purportedly

salvaged parts shown in the photos of the east parts room were used in thermoforming

operations, explaining in detail how the parts were used. (Tr. 318-23, 423-24; see also Ex. 5 at

7). 

The Court concluded in its ruling on Formall’s motion for summary judgment that “the

Formall Agreement included the generic nuts, bolts, and fittings located in the west spare parts

room, and if it is ultimately determined that Formall purchased the [e]ast [s]pare [p]arts, the

generic nuts, bolts, and fittings in the east spare room.” (DE 88 at 25). Nothing presented at

trial causes the Court to reconsider this conclusion in its ruling on Formall’s summary

judgment motion.32 Accordingly, the Court finds that the three skids of brass, copper, and

32 Formall also argues that even if TME did not convey title to these items under the Formall Agreement,

Marion T is equitably estopped to assert its ownership of these items now because Marion T allowed Formall to

37
stainless steel fittings from the east parts room fall within the scope of the term “ALL Brown

spare parts” in the Formall Agreement. As such, Formall did not “exercise unauthorized

control over property of another” when removing these allegedly salvaged parts, MNW, LLC,

884 F. Supp. 2d at 765, dooming Marion T’s claim that Formall tortiously or criminally

converted these parts.

F. Marion T Exercised Unauthorized Control Over the 

Remaining Bus Duct to the West Thermoformer

 Marion T contends that it obtained title to all of the bus duct to both thermoformers

from TriEnda under the TriEnda Lease, and that Formall committed conversion when it

removed a portion of the bus duct to the west thermoformer. Formall, however, argues that

Marion T only acquired title to the bus duct to the east thermoformer from TME under the

Marion T Agreement, which occurred subsequent to Formall’s purchase of the bus duct to the

west thermoformer under the Formall Agreement. As such, Formal claims that Marion T

converted Formall’s property when it refused to allow Formall to remove all of the bus duct to

the west thermoformer. (Tr. 347-49, 354-55). 

1. Any Title That Marion T Acquired to the Bus Duct Arose From the Marion T

Agreement, Not the TriEnda Lease

 The TriEnda Lease provides that TriEnda retained ownership of its “manufacturing

equipment and electrical wiring back to the first junction box or electrical service feed.” (Ex. 6

at 5). Marion T asserts that this language means that TriEnda retained only the wiring to the

remove them from the facility. (DE 125 at 43-44; Tr. 248-50); see Money Store Inv. Corp. v. Summers, 849 N.E.2d

544, 547 (Ind. 2006) (“The party claiming equitable estoppel must show its (1) lack of knowledge and of the means

of knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) action based

thereon of such a character as to change his position prejudicially.” (citation and internal quotation marks omitted)). 

Marion T does not respond to Formall’s equitable estoppel argument in its post-trial briefing. (See DE 124). 

38
first junction box or electrical service feed as measured out from the thermoformer, which was

about six to eight feet out from the machine, and thus, that under the TriEnda Lease all of the

bus duct installed by TriEnda became Marion T’s property immediately upon installation. (Tr.

30-31). 

Marion T’s proffered interpretation of the TriEnda Lease defies logic for several

reasons. First, Lee testified that TriEnda’s cost of installing the bus duct to the west

thermoformer was $203,000. (Tr. 67-68, 76-77). As Lee’s theory goes then, because there

were two thermoformers in the facility requiring bus duct, TriEnda transferred property valued

in excess of $400,000 to Marion T immediately upon installation of the bus duct. Lee attempts

to rationalize such a transfer by stating that TriEnda’s installation of the bus duct, as well as

TriEnda’s plan to remodel the building and raise the height of the building in some places to 10

or 12 feet, were negotiated terms of the TriEnda Lease. (Tr. 27, 30-31, 67-68). Lee claims that

these terms were offered in exchange for Marion T giving TriEnda six months free rent and

setting the rent at $1 to $1.50 per square foot below the market rate. (Tr. 27, 30-31, 67-68). 

But if Lee is to be believed, one would expect that the TriEnda Lease would have

spelled out such a large transfer of value in much more detail. Marion T does not point to any

contemporaneous evidence to support its proffered interpretation, and it is undisputed that

TriEnda never raised the height of the building. (Tr. 239). Furthermore, at the time the parties

entered into the TriEnda Lease, the only “electrical service feed” that existed in the facility was

the main switch gear in the penthouse, as TriEnda had to install all of the bus duct and power

panels to the west thermoformer after it leased the space. (Tr. 67-69, 160). It seems illogical

that the parties would base language in the TriEnda Lease on equipment that did not even exist

39
at the time. 

Nor does Marion T’s proffered interpretation of the TriEnda Lease square with the

terms of the Marion T Agreement. Marion T entered into the Marion T Agreement to receive

compensation for unpaid back rent owed by TriEnda. (Ex. 4 at 2-3). So if Marion T already

owned all of the bus duct as it claims, why would it negotiate a term in the Marion T

Agreement that permits TME to remove the bus duct to the west thermoformer and states that

the bus duct to the east thermoformer becomes the property of Marion T? As this Court stated

in its ruling on Formall’s motion for summary judgment, “[it] defies, logic . . . that Marion T

would have entered into an agreement to obtain title to assets that it already owned.” (DE 88

at 15); see 3600 Mich. Co., Ltd. v. Infra-Metals, Co., No. 2:07-CV-367-PPS-APR, 2011 WL

1402779, at *6 (N.D. Ind. Apr. 13, 2011) (“[C]ourts interpret contracts to avoid absurd

results.”).

 Furthermore, the Marion T Agreement permits TME to remove “[o]nly one bus ducting

from the west Thermoformer to Transformer or switch gear” and states that such equipment

“shall be removed . . . at the first electrical disconnect.” (DE 113 Stip. 30). According to

Marion T and Gibbons, the “first electrical disconnect” is the first electrical panel as measured

out from the thermoformer. (Tr. 174). But that interpretation makes the Marion T Agreement

nonsensical, as Gibbons testified that there is no bus duct between the thermoformer and the

power panel. (Tr. 185; see also Tr. 438-39 (Krohn’s testimony stating: “Between the 5 and 10

feet from this power panel to the machine, no, there was not busbar connecting it. It was

wiring.”)). The Court “should make every effort to avoid an interpretation that renders any

words, phrases, or terms ineffective or meaningless.” Bowman v. Int’l Bus. Machs. Corp., 853

40
F. Supp. 2d 766, 769 (S.D. Ind. 2012) (citing Ind. Gaming Co., L.P. v. Blevins, 724 N.E.2d

274, 278 (Ind. Ct. App. 2000)). 

The more logical reading of the TriEnda Lease, rather, is Formall’s proffered

interpretation that the “electrical wiring back to the first junction box or electrical service feed”

(Ex. 6 at 5) means the wiring to the first junction box or electrical service feed as measured out

from the facility’s power source. Gibbons testified that the power supply comes in from the

power feed. (Tr. 200 (“Electron flow is downstream.”)). Specifically, Gibbons stated: 

“Supply came into the building in a large substation outside on the south end of the facility,”

and the first point of connection was in the “penthouse” in the facility. (Tr. 170-71, 202). 

Krohn, too, testified that there is usually a transformer on the outside of the wall and a switch

gear on the inside of the wall, which typically constitutes the electrical service feed for the

facility. (Tr. 359-60). 

Formall’s interpretation of the TriEnda Lease is also more consistent with the Marion T

Agreement, which provides that TME could remove “[o]nly one bus ducting from the west

Thermoformer to Transformer or switch gear” and that such equipment “be removed . . . at the

first electrical disconnect.” (DE 113 Stip. 30). If the “first electrical disconnect” is measured

out from the thermoformer, as Marion T urges, there is no bus duct, rendering this provision in

the Marion T Agreement meaningless. See Bowman, 853 F. Supp. 2d at 769. However, if the

“first electrical disconnect” is measured out from the power source, as Formall urges, then bus

duct exists, making logical sense of the Marion T Agreement. Id.; see Pittman v. Max H. Smith

Farms, Inc., 506 N.E.2d 1139, 1141 n.2 (Ind. Ct. App. 1987) (“[The] court will use common

sense, justice and the probable intention of the parties to construe a contract[.]” (citation

41
omitted)). 

For all of these reasons, the Court rejects Marion T’s proffered interpretation of the

TriEnda Lease and concludes that Marion T did not acquire title to the bus duct under the

terms of the TriEnda Lease. Rather, any title that Marion T acquired to the bus duct came from

TME under the Marion T Agreement, which was entered into subsequent to TME’s entering

into the Formall Agreement with Formall. 

2. Formall Was Entitled to Remove All of the Bus Duct to the West Thermoformer

Under the Formall Agreement, Formall purchased, among other things: the west

thermoformer, the “3000 AMP Power Panel,” and the “[w]iring from switch gear to machine to

include bus bar from switch gear to Power Panel.” (DE 113 Stip. 8; Ex. 1; Tr. 441, 444-45). 

As the Court has already concluded, the only reasonable interpretation of that provision is as

measured out from the facility’s power source, because there is no bus duct between the power

panel and the machine when measured out from the machine. Thus, it is clear that Formall was

entitled to remove at least a portion of the bus duct to the west thermoformer extending from

the building’s main switch gear, which was located in the penthouse where the power entered

the facility. The question that remains is: How much of the bus duct to the west thermoformer

was Formall entitled to remove? 

To review, as both Krohn and Gibbons described, the power came into the building

from the utility substation on the outside of the building and traveled inside the building

through the transformer to the main switch gear located in the penthouse. As Krohn testified,

from the building’s main switch gear, three lines of bus duct ran to three power panels that

were located six to eight feet from the west thermoformer. (Tr. 340-41, 406; Ex. F-1). These

42
lines consisted of: (1) one line of 3000 amp bus duct that ran to a 3000 amp power panel; (2)

one line of 1200 amp bus duct that ran to a 1200 amp power panel; and (3) two parallel lines of

800 amp bus duct that connected to a 1200 amp bus duct that ran to a 1200 amp power panel. 

(Tr. 341-43, 466; Ex. F-1). These three lines of bus duct were due to the thermoformer’s

extraordinary power requirements, the lines powered different aspects of the machine, and all

three lines were required for the machine to operate in its full capacity twin-sheet mode. (Tr.

341, 343, 489-90). 

Ultimately, Formall removed all of the 3000 amp bus duct, several short runs of the

1200 amp bus duct, the 3000 amp power panel, and the two 1200 amp power panels. (Tr. 412,

453-54, 473-77). Formall did not, however, remove 400 feet of 800 amp bus duct or 150 feet

of 1200 amp bus duct. (Tr. 352, 386-87, 415-16, 473-77). Marion T—in particular,

Jones—refused to allow Formall to remove that portion of the bus duct. (DE 113 Stip. 26; Tr.

416). 

Krohn testified that Formall intended under the Formall Agreement to purchase “all of

the electrical equipment necessary to power the [west] Brown thermoformer.” (Tr. 347, 485). 

He stated that while this did not include the transformer or the main switch gear located in the

penthouse, it did include “everything . . . below the switchgear,” including all of the bus duct. 

(Tr. 348, 405, 418, 444-45, 451, 485; see also DE 5 at 5). He said that it would not have made

sense for Formall to negotiate for and purchase only half of the thermoformer’s electrical

needs. (Tr. 455; see also DE 5 at 5-6). 

There is support in the language of the Formall Agreement for Formall’s position. As

already explained, the Formall Agreement states that Formall purchased the “[w]iring from

43
switch gear to machine to include bus bar from switch gear to Power Panel.” (DE 113 Stip. 8;

Ex. 1). This language is consistent with Krohn’s testimony that Formall’s intent was to

purchase all of the bus duct and associated power panels extending from the main switch gear

in the penthouse to the west thermoformer. Indeed, the bus duct was specifically included in

the language of the Formall Agreement, and it does not make sense that Krohn would purchase

just one line or section of the bus duct, rather than all of the bus duct it took to power the west

thermoformer. 

 Marion T argues, however, that if Formall is entitled to any bus duct under the Formall

Agreement, it is only one line of bus duct, not all three lines. In support of this interpretation,

Marion T points emphasizes that the Formall Agreement itemized the “3000 AMP Power

Panel” but it does not mention the other two 1200 power panels. (See DE 113 Stip. 8; Ex. 1). 

But Krohn gave a reasonable explanation for this discrepancy. He explained that when he was

originally negotiating the purchase, he did not know how many lines of power fed the west

thermoformer, and thus, Formall did not have a count of exactly what electrical components

were there. (Tr. 452-55; see also Ex. 5 at 5-6). He states that this uncertainty is why Formall

“negotiated for the full electrical package.” (Tr. 455). Krohn’s explanation is supported, at

least in part, by his and Kruschke’s statements summarized in the 2012 police report. (Ex. 5). 

Krohn further explains that the 3000 amp power panel was different than the two 1200

amp power panels. (Tr. 341-46, 466-70, 475). The 3000 amp power panel was a free standing

unit some 10 feet away from the thermoformer (Ex. A at 107), while the two 1200 amp power

panels were more integrated into the machine itself and housed in the control cabinets for the

machine. (Tr. 341-46, 466-70, 475). This is a logical explanation for why TME itemized the

44
3000 amp power panel in the Formall Agreement, but not the two 1200 amp power panels. 

Undoubtedly, the Formall Agreement is far from artful, as it consists of a one-page purchase

order with a second page of boilerplate terms and contains cursory descriptions and

misspellings. (See Ex. 1); see Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d

805, 813 (Ind. 2009) (stating that Indiana law does not require absolute certainty as to all terms

of a contract). 

 The Marion T Agreement, too, can be read consistently with Formall’s proffered

interpretation of the Formall Agreement. The Marion T Agreement allowed TME to remove

“[o]nly one buss ducting from the west Thermoformer to Transformer or switch gear. Does

not include transformer or switch gear. If affects any other alarms, heat, lights, or other factor

functions[,] client will repair or modify. No buss duct to be removed on east Thermoformer.” 

(DE 113 Stip. 30). While Marion T suggests that this provision means Formall was entitled to

removed just one 10-foot piece of bus duct, that makes no sense. Nor does it seem logical that

Formall intended to purchase just one line of bus duct to the west thermoformer, which is

Marion T’s alternate explanation, as Formall knew that the thermoformer required

extraordinary power and needed all three lines of bus duct to operate at full capacity. 

 Consequently, while in actuality there were three lines of bus duct running to the west

thermoformer, the most logical interpretation is that TME intended to remove all of the bus

duct to one thermoformer—that is, the west thermoformer that Formall had purchased—and

that Marion T was to retain all of the bus duct to the other thermoformer, that is, the east

thermoformer. See First Fed. Sav. Bank v. Key Mkts., Inc., 559 N.E.2d 600, 603 (Ind. Ct. App.

1990 (stating that the court “must accept an interpretation of the contract which harmonizes its

45
provisions as opposed to one which causes the provision to be conflicting” (citation omitted)). 

As such, even if Kruschke of TME may later have attempted to convey some of the bus duct to

Marion T, whether mistakenly or otherwise, that is not determinative because by that time

TME no longer had title to the bus duct to the west thermoformer. (See Ex. 5 at 6); Ind. Code

§ 26-1-2-403(a) (providing that under Indiana law, a purchaser of good acquires all title to

which the purchaser’s transferor had power to transfer). 

In sum, the Court finds that under the Formall Agreement, Formall obtained title to all

of the bus duct to the west thermoformer from TME. Consequently, Formall was entitled to

remove the bus duct (and associated power panels and tap boxes) to the west thermoformer,

and thus, Formall did not “exercise unauthorized control over property of another” when

removing this equipment from the Marion T facility. MNW, LLC, 884 F. Supp. 2d at 765,

Therefore, Marion T’s tortious and criminal conversion claims based on Formall’s removal of

a portion of the bus duct fail. 

Conversely, when Marion T refused to allow Formall to remove all of the bus duct to

the west thermoformer (DE 113 Stip. 26), it “exercise[d] unauthorized control over the

property of [Marion T],” MNW, LLC, 884 F. Supp. 2d at 765, making Marion T liable to

Formall for tortious conversion of Formall’s property. There is no evidence, however, that

Marion T “knowingly or intentionally” exerted unauthorized control over the bus duct, Ind.

Code § 35-43-4-3(a), or that Marion T was “aware of a high probability its control over [the

bus duct] was unauthorized,” JET Credit Union, 879 N.E.2d at 597. Rather, the evidence at

trial indicates that Marion T had a basis to believe that it had acquired title to this equipment

under the Marion T Agreement. Therefore, while Formall has proven its counterclaim of

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tortious conversion based on Marion T’s refusal to allow Formall to remove all of the bus duct

to the west thermoformer, Formall has not proven its claim of criminal conversion against

Marion T.

G. Damages

“With respect to a conversion claim, damages are restricted to actual losses sustained as

a proximate result of the conversion . . . .” SJS Refractory Co., LLC v. Empire Refractory

Sales, Inc., 952 N.E.2d 758, 766 (Ind. Ct. App. 2011) (citation omitted). Because Marion T

has established that Formall committed tortious conversion, but not criminal conversion,

recovery of treble damages, costs, and attorney’s fees are not available to Formall. See Ind.

Code § 34-24-3-1. Accordingly, Formall is entitled to recover from Marion T the value of the

portion of bus duct to the west thermoformer that Marion T refused to allow Formall to

remove.33

Formall has submitted two quotes, $129,511.72 and $132,200.00, from electrical

contractors for the value of the portion of the bus duct that Marion T refused to let it remove. 

(Exs. B, C; DE 124 at 10); see SJS Refractory Co., LLC, 952 N.E.2d at 767 (“[T]he purchase

price of a good is . . . evidence of the value of that good.” (citation omitted)). Marion T has

not filed a response to Formall’s proposed findings of fact and conclusions of law, and thus,

Formall’s evidence of damages is undisputed. Accordingly, the Court will award damages in

the amount of $130,855.86, the average of the two quotes, in favor of Formall and against

Marion T. 

33 Formall does not seek an award of prejudgment interest. (See DE 125 at 51; DE 126 at 27 (citing Ind.

Code §§ 34-51-4-1 to -9; Kosarko v. Padula, 979 N.E.2d 144, 147-48 (Ind. 2012))). 

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V. CONCLUSION

The Court concludes that Formall has proven by a preponderance of the evidence its

counterclaim of tortious conversion against Marion T. Conversely, Formall has not proven its

claim of criminal conversion against Marion T, and Marion T has not proven its claims of

tortious conversion or criminal conversion against Formall. The Clerk DIRECTS the Clerk to

enter a judgment in the amount of $130,855.86 in favor of Formall and against Marion T, and

to close this case. 

 SO ORDERED. 

Enter for the 29th day of March 2018.

 /s/ Susan Collins 

Susan Collins

United States Magistrate Judge

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