Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016 Page 1 of 23

ATTORNEY FOR APPELLANTS

Leanna Weissmann

Lawrenceburg, Indiana

ATTORNEY FOR APPELLEE

Greg S. Morin

Montgomery, Elsner & Pardieck, LLP

Seymour, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Otter Creek Trading Company, 

Inc., and Daniel Pohle,

Appellants-Defendants,

v.

PCM Enviro PTY, LTD,

Appellee-Plaintiff.

June 7, 2016

Court of Appeals Case No.

40A01-1509-MI-1432

Appeal from the Jennings Superior 

Court

The Honorable Matthew D. Bailey, 

Special Judge

Cause No. 40D01-1410-MI-49

Bradford, Judge.

Case Summary

[1] Appellant-Defendant Otter Creek Trading Company is operated by AppellantDefendant Daniel Pohle (collectively, “Defendants”) and manufactures and 

sells lead smelters. Appellee-Plaintiff PCM Enviro PTY, LTD (“PCM”), is an 

Australian company owned and operated by Craig Mitchell and his brother 

Paul that recycles lead shot collected from shooting clubs. In 2014, Craig, in 

his capacity as operator of PCM, arranged to purchase a smelter from Otter 

Creek and paid for it in full. Defendants, however, did not ship the smelter or 
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another part (purchased separately and called a Broekema belt) that Defendants 

had offered to ship along with the smelter and which the defendant Pohle had 

retrieved from a shipping company in Edinburgh, Indiana. 

[2] PCM sued Defendants for breach of contract and for conversion of the 

Broekema belt. Pohle, pro se, filed a letter with the trial court, alleging that 

Defendants had no signed contract with PCM and that he had never driven to 

Minnesota to collect the Broekema belt. After the trial court advised 

Defendants to secure legal representation, they did for a time but filed no 

further response to PCM’s complaint. Eventually, the trial court entered 

default judgment against Defendants and held a hearing on damages. After the 

hearing, the trial court ordered a total of approximately $147,000.00 in 

damages, which included the price of the smelter, lost profits, the value of the 

Broekema belt, and punitive damages for conversion. Defendants appeal, 

contending that the trial court erred in entering default judgment, in denying 

their motions to correct error and for relief from judgment, and in calculating 

damages. Finding no error, we affirm. 

Facts and Procedural History

[3] Otter Creek is an Indiana corporation operated by Pohle which manufactures 

and sells lead smelters to customers outside the United States. PCM is an 

Australian company owned and operated by Craig and his brother Paul that 

recycles lead shot collected from shooting clubs. In July of 2014, Craig, in his 

capacity as operator of PCM, arranged to purchase a smelter from Otter Creek 
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and paid for it in full by July 31, 2014. Otter Creek, however, did not ship the 

smelter. At some point before deciding not to ship the smelter, Pohle told PCM 

that there would be room in the smelter packaging and invited PCM to ship 

other items to Otter Creek so that they could be shipped with the smelter. PCM 

desired to ship a part called a Broekema belt (purchased from a company in 

Minnesota) along with the smelter, and, to that end, Pohle retrieved PCM’s

Broekema belt from the freight company in Edinburgh, Indiana. At one point, 

Pohle refused to release the Broekema belt to a friend of Craig’s who had driven 

from Wisconsin. 

[4] On October 17, 2014, PCM filed its complaint against Defendants, alleging that 

they had breached the contract for the purchase of the smelter and that they had 

converted the Broekema belt: 

COMPLAINT

Plaintiff, [PCM] complains of the Defendants ... and alleges and 

says:

I. PARTIES

1. [PCM] is now, and at all times mentioned in this 

complaint was, a corporation duly organized and existing 

under the laws of Australia, with their principal place of 

business located in Melbourne, Victoria, Australia. 

2. [Pohle] is currently a resident of the County of Jennings, 

Indiana, and is president of [Otter Creek]. 

3. [Otter Creek] is now, and at all times mentioned in this 

complaint was, a corporation duly organized and existing 

under the laws of State of Indiana, with their principal 

place of business located in Jennings County, Indiana, and 
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is engaged in and is transacting business as a company in 

Jennings County, Indiana.

II. COUNT I

BREACH OF CONTRACT

4. [Otter Creek], by its president, [Pohle], offered to 

manufacture and provide a three (3) ton gas fired lead 

smelter to PCM.

5. [PCM] accepted Defendant’s offer on or about July 5, 

2014, to have Defendant manufacture a three (3) ton gas 

fired lead smelter. 

6. Plaintiff was to pay Defendant a total of $15,000.00 per 

the terms of the contract with half the amount due initially 

and the remaining half due upon completion of the 

smelter.

7. Plaintiff complied with the terms of the contract and made 

both payments representing $15,000.00 in total to Otter 

Creek via wire transfer.

8. On August 7, 2014, [Otter Creek] sent a letter signed by 

Pohle, as president, to PCM stating the three (3) ton gas 

fired lead smelter was completed, tested and that they were 

waiting on F.O.B. shipping instructions from PCM.

9. The August 7, 2014 letter also stated the $15,000.00 owed 

by PCM had been paid. 

10. [Defendants] have refused to release or ship the smelter 

since this time even after shipping instructions were 

supplied and repeated demands by PCM.

11. Pohle falsely claims that PCM and [Craig] intend to steal 

his intellectual property by purchasing the smelter and 

copying it. 

12. [Defendants] have refused to return the $15,000.00 they 

received to perform this contract to PCM.

13. [Defendants] have breached the contract with PCM by 

their failure to perform their obligations under the 
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contract, specifically, releasing and delivering the smelter 

to PCM.

14. PCM has been materially damaged as a result of 

[Defendants’] intentional breach of contract. 

III. COUNT II

CONVERSION

15. The allegations of rhetorical paragraphs four through 

fourteen are incorporated herein by reference. 

16. PCM had contracted with a third party, Lead Us Reclaim, 

LLC, of Augusta, Wisconsin, to purchase a Broekema 

USA belt.

17. [Defendants] had agreed to ship the belt with the abovementioned smelter to PCM.

18. On August 5, 2014, Pohle drove to Broekema USA and 

told them that he was picking up a belt to package with the 

lead smelter that was to be shipped to PCM.

19. The Broekema belt was released to Pohle and he signed a 

Conway Freight delivery receipt for the belt. 

20. PCM had arranged for shipping for the lead smelter and 

belt on three separate occasions but Pohle refused to 

release the equipment and complete his performance of the 

contract. 

21. The belt in Pohle’s possession has never belonged to him 

and he has refused to return or release the belt after 

multiple demands by PCM and [Craig]. 

22. Pohle has intentionally converted the belt he was to ship 

with the smelter to PCM by keeping the belt for his own 

use and knowing he never ha[d] permission from PCM to 

retain the belt.

23. Plaintiff has suffered significant loss and damage due to 

the conversion of Plaintiff’s Broekema belt and money by 

[Defendants]. 
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24. Defendants through conversion and theft have deprived 

PCM of the entire value of the belt and equipment along 

with all profits past and future. 

WHEREFORE, Plaintiff, PCM, demands judgment against the 

Defendants, in an amount adequate to fully and fairly 

compensate him for his damages, prejudgment interest, punitive 

and treble damages, attorney fees, the cost of this action, and for 

all other appropriate relief. 

Appellant’s App. pp. 23-25. 

[5] On November 10, 2014, Defendants filed a letter with the trial court, which 

stated, in part, 

a) At no time has Otter Creek Trading Co., Inc. nor Daniel

L. Pohle ever entered into any signed agreement with any

Corporation, Company, Resident or Citizen of the 

Country of Australia. 

b) I, Daniel L. Pohle, did not travel to Minnesota where 

Broekema USA is located in reference to any belt. 

Appellant’s App. p. 26. 

[6] On November 12, 2014, Defendants filed a discovery request with the trial 

court requesting PCM’s articles of incorporation and Craig’s international 

travel records, proof of residence, and address. On November 18, 2014, the 

trial court urged Defendants to seek the assistance of counsel. On November 

26, 2014, Defendants filed a letter thanking the trial court and informing it that 

they would be retaining counsel and attempting to have the matter transferred 

to federal court. On December 18, 2014, counsel for Defendants filed an 

appearance and moved for a forty-five day extension of time within which to 

answer PCM’s complaint, which motion the trial court granted. On December 
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29, 2014, counsel for Defendants withdrew his appearance. Defendants filed 

no further response to PCM’s complaint within the forty-five-day extension 

period. 

[7] On February 5, 2015, PCM moved for default judgment on the basis that 

Defendants had not filed an answer to its complaint. That day, the trial court 

entered default judgment in favor of PCM and ordered a hearing for the 

purpose of setting damages. On May 22, 2015, the trial court held a hearing on 

the issue of damages. On June 17, 2015, the trial court issued its judgment for 

damages, finding that PCM had suffered damages of $15,000 for money 

retained, $127,256.50 for lost profits, $1281.30 for money spent on the 

converted Broekema belt, and $3000.00 in punitive damages, totaling 

$146,537.80. That day, the trial court also denied Defendants’ motion to 

dismiss PCM’s complaint. On July 17, 2015, Defendants filed a motion to 

correct error and for relief from judgment, which the trial court denied. 

[8] Defendants argue on appeal that (1) the trial court erred in entering default 

judgment against them because they adequately answered PCM’s complaint, 

(2) the trial court abused its discretion in denying their motion to correct error 

and for relief from judgment, and (3) the trial court abused its discretion in 

determining PCM’s damages. PCM responds that (1) the trial court properly 

entered default judgment in its favor because Defendants filed multiple letters 

with the trial court but never admitted or denied any of PCM’s allegations, (2) 

the trial court did not abuse its discretion in denying Defendants’ motion to 
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correct error and for relief from judgment, and (3) the trial court properly 

awarded damages for lost profits to PCM. 

Discussion and Decision

I. Whether the Trial Court Abused its Discretion in 

Entering Default Judgment in Favor of PCM

[9] Indiana Rule of Trial Procedure 8(B) provides, in part, that “[a] responsive 

pleading shall state in short and plain terms the pleader’s defenses to each claim 

asserted and shall admit or controvert the averments set forth in the preceding 

pleading.” Trial Rule 8(D) provides, in part, that “[a]verments in a pleading to 

which a responsive pleading is required, except those pertaining to amount of 

damages, are admitted when not denied in the responsive pleading.” “When a 

party against whom a judgment for affirmative relief is sought has failed to 

plead or otherwise comply with these rules and that fact is made to appear by 

affidavit or otherwise, the party may be defaulted by the court.” Trial R. 55(A). 

[10] “A judgment by default which has been entered may be set aside by the court 

for the grounds and in accordance with the provisions of Rule 60(B).” Trial R.

55(C). 

The trial court’s resolution of these questions, on both entering 

and setting aside a default judgment, is a matter of discretion, 

and we will reverse a ruling on these questions only for an abuse 

of discretion. Taco Bell Corp. v. United Farm Bureau Mut. Ins. Co. 

(1991), Ind. App., 567 N.E.2d 163, 165, trans. denied; [Green v. 

Karol, 166 Ind. App. 467, 473, 344 N.E.2d 106, 110.] That is, we 
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will reverse only “if the trial court’s decision is clearly against the 

logic and effect of the facts and circumstances before the court, of 

the reasonable, probable, and actual deductions to be drawn 

therefrom.” Myers v. Myers (1990), Ind., 560 N.E.2d 39, 42.

State, Dep’t of Nat. Res. v. Van Keppel, 583 N.E.2d 161, 163 (Ind. Ct. App. 1991), 

trans. denied. 

A. Count I

[11] In Count I, PCM alleges that Defendants entered into a contract with PCM to 

provide it a lead smelter in exchange for $15,000.00 and accepted payment, but 

never delivered the smelter or returned payment. Defendants’ entire response 

to these allegations was: “At no time has Otter Creek Trading Co., Inc. nor

Daniel L. Pohle ever entered into any signed agreement with any Corporation, 

Company, Resident or Citizen of the Country of Australia.” Appellant’s App. 

p. 26. Because this response neither confirms nor denies any of PCM’s specific 

allegations, they are deemed admitted pursuant to Trial Rule 8(D). Moreover, 

the response does not in any way directly respond to PCM’s contract claim, as 

PCM did not allege that it had a signed contract with Defendants. Simply put, 

even if we assume that Defendants have not ever entered into a signed 

agreement with PCM or any other Australian company, that would not help 

Defendants in this case because it does not represent a valid defense to PCM’s 

contract claim. Although, in general, a valid contract for the sale of goods for 

more than $500.00 must be in writing and signed by the party against whom 

enforcement is sought, a contract that does not meet these requirements is 

enforceable “with respect to goods for which payment has been made and 
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accepted or which have been received and accepted[.]” Ind. Code §§ 26-1-2-

201(a), -201(c). The trial court did not abuse its discretion in entering default 

judgment in favor of PCM on Count I. 

[12] We are cognizant that Indiana has adopted the principles of notice pleading: 

“All pleadings shall be so construed as to do substantial justice, lead to 

disposition on the merits, and avoid litigation of procedural points.” Trial R. 

8(f). That said, the defects in Defendants’ answer to PCM’s contract claim 

were not merely of form; the content of the answer simply did not address any 

of PCM’s actual allegations. Our research has uncovered no Indiana case 

where a similarly non-responsive answer was deemed adequate under Trial 

Rule 8(b), and, while recent cases directly on point cannot be found, our 

conclusion is consistent with binding Indiana authority. 

[13] In the 1895 case of Moore v. Morris, 142 Ind. 354, 41 N.E. 796 (Ind. 1895), the 

appellees sued the appellants for fraud in the procurement of deeds from one of 

the appellees to certain lands in Hamilton County when that appellee was 

allegedly of unsound mind. Id. at 354, 41 N.E. at 796. Appellants’ response 

was based chiefly on the allegation that appellants were residents of Marion 

County and could not be sued in Hamilton County on a merely personal action. 

Id. The Indiana Supreme Court found this response to be inadequate, as it did 

not foreclose the possibility that appellants were Hamilton County residents 

when the action was begun. Id. Put another way, the response in Moore did not 

directly respond to the allegations in the complaint and therefore did not 
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necessarily provide a defense to the complaint, even if the averment were 

assumed to be true. 

[14] In Wilson v. Evansville & Cleveland Railroad Co., 9 Ind. 510 (1857), a suit upon a 

stock subscription, the complaint alleged that a Willard Carpenter had made the 

stock subscription on behalf of the defendant, who later ratified it. Id. at 510. 

The defendant answered, denying that he had made any stock subscription. Id. 

The Indiana Supreme Court concluded that the answer was inadequate because 

it was non-responsive: 

In this case, however, it is plain that the answer does not meet 

the allegations in the complaint. The latter avers that Willard 

Carpenter subscribed, and the defendant afterwards ratified. The 

former asserts that the defendant did not subscribe. It is true, the 

legal effect of the ratification, if a valid one, would be to make 

the defendant liable as a subscriber; but that liability, strictly 

speaking, would arise from the ratification, not the making of a 

subscription. The answer should have directly met the 

allegations in the complaint. It impliedly admits them. It is a 

kind of a negative pregnant.

Id. at 511. We see no way to meaningfully distinguish the instant case from the 

binding precedent of Moore and Wilson. In failing to directly meet the 

allegations in Count I, Defendants have impliedly admitted them. 

B. Count II

[15] In Count II, PCM alleges that Defendants took possession of a Broekema belt 

that it had purchased, retained possession without PCM’s permission, and have 

refused to return the Broekema belt. Defendant Pohle’s response was “I, 
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Daniel L. Pohle, did not travel to Minnesota where Broekema USA is located 

in reference to any belt.” Appellant’s App. p. 26. Again, this response neither 

confirms nor denies any of PCM’s allegations, which are therefore deemed 

admitted. At most, Pohle denies that he traveled to Minnesota to collect the 

Broekema belt, something that PCM did not specifically allege. In any event, 

Defendants’ denial is hardly material, as the place where Pohle took possession 

of the Broekema belt is not an element of conversion. Defendants do not deny 

that they took possession of the Broekema belt or that they still have it. As with 

PCM’s first claim, because Defendants’ response did not directly meet PCM’s 

allegations, Defendants have impliedly admitted them. The trial court did not 

abuse its discretion in entering default judgment in favor of PCM. 

II. Whether the Trial Court Abused its Discretion in 

Denying Defendants’ Motions to Correct Error and 

Motion for Relief From Judgment

[16] “We review a denial of a request for new trial presented by a Trial Rule 59 

motion to correct error or a Rule 60(B) motion for relief from judgment for 

abuse of discretion.” Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 

1270 (Ind. 2008). 

A trial court has abused its discretion only if its decision is clearly 

against the logic and effect of the facts and circumstances before 

the court or the reasonable inferences therefrom. The trial 

court’s decision comes to us cloaked in a presumption of 

correctness, and the appellant has the burden of proving that the 

trial court abused its discretion. In making our determination, 

we may neither reweigh the evidence nor judge the credibility of 
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witnesses. Instead, we look at the record to determine if: “(a)

the trial court abused its judicial discretion; (b) a flagrant injustice 

has been done to the appellant; or (c) a very strong case for relief 

from the trial court’s [order] ... has been made by the appellant.”

Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. 

App. 2001) (citations omitted).

A. Motion to Correct Error

[17] Most of Defendants’ specific arguments in this section boil down to claims that 

they are entitled to relief based on the following, which Defendants seem to 

characterize as claims of newly-discovered evidence: PCM did not legally exist 

when it arranged to purchase the smelter from Defendants, PCM did not follow 

Indiana law when filing its complaint against Defendants, and Defendants did 

not ship the smelter to PCM due to Craig’s failure to adequately verify his 

identity. 

“Motions predicated upon newly discovered material evidence 

are viewed with disfavor.” Kimmel v. State (1981), 275 Ind. 575, 

418 N.E.2d 1152, 1157. Whether to grant a new trial on the 

grounds of newly discovered evidence is within the discretion of 

the trial court, and, on appeal from a denial of the motion, we 

reverse only if the trial court could not reasonably have reached a 

conclusion that, upon retrial, a different result was not probable. 

Id. 

Laudig v. Marion Cty. Bd. of Voters Registration, 585 N.E.2d 700, 712 (Ind. Ct. 

App. 1992), trans. denied. 

[18] In order to obtain relief on the basis of allegedly newly-discovered evidence, 

Defendants would have to establish that: (1) the evidence has been discovered 
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since the default; (2) it is material and relevant; (3) it is not cumulative; (4) it is

not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence 

was used to discover it in time for trial; (7) the evidence is worthy of credit; (8)

it can be produced on a retrial of the case; and (9) it will probably produce a 

different result. See Wiles v. State, 437 N.E.2d 35, 39 (Ind. 1982). 

[19] At the very least, Defendants do not claim, much less establish, that evidence 

related to the three specific claims they make in this section was discovered 

following the entry of default judgment against them on February 5, 2015. 

Defendants do not claim that they were unaware of the facts underlying their 

alleged concerns about PCM’s legal capacity to sue them in an Indiana court 

before default judgment was entered. As for alleged concerns about the 

sufficiency of Craig’s identification, these surfaced soon after PCM made its 

final payment on the smelter according to Pohle’s own testimony at the 

damages hearing. (Tr. 95-97). 

[20] Moreover, Defendants have shown no likelihood of a different result were they 

to obtain a reversal of the trial court’s default judgment. Defendants’ first 

argument is based on the fact that PCM Enviro PTY LTD was not registered as 

a proprietary Australian company until July 17, 2014, which is after PCM 

agreed to purchase the smelter from Defendants. (Plaintiff’s Ex. 1). Although 

Defendants suggest that this somehow undermines the validity of their contract 

with PCM, we conclude that they have failed to establish that it does. PCM 

Enviro was registered as a business name on January 3, 2013, as an entity being 

held by the Treelawney Development Trust, which entity Craig testified he and 
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Paul “turned ... into a corporation” on July 17, 2014. Tr. p. 10. Contrary to 

Defendants’ claims, the evidence seems to establish, at most, that the PCM 

Enviro that contracted with Defendants was a predecessor in interest to the 

PCM Enviro that sued them. 

[21] Defendants also contend that PCM failed to follow Indiana law in pursuing its 

lawsuit. Defendants rely on Indiana Code section 23-1-49-2(a), which provides 

that “[a] foreign corporation transacting business in Indiana without a 

certificate of authority may not maintain a proceeding in any court in Indiana 

until it obtains a certificate of authority.” Subsection (c) of the same statute, 

however, provides that 

[a] court may stay a proceeding commenced by a foreign 

corporation, its successor, or assignee until it determines whether 

the foreign corporation or its successor requires a certificate of 

authority. If it so determines, the court may further stay the 

proceeding until the foreign corporation or its successor obtains 

the certificate.

[22] While PCM did not originally have a certificate of authority, it obtained one on 

May 21, 2015. Plaintiff’s Ex. 1. In any event, as Indiana Code section 23-1-49-

2(c) makes clear, PCM’s failure to obtain a certificate of authority had no effect 

on the validity of its lawsuit nor did it have any effect on its outcome. The only 

remedy Defendant would ever have been entitled to was a stay while PCM 

obtained a certificate of authority, which is certainly not a different result. 

[23] As for Defendants claim that they did not ship the smelter or Broekema belt 

because Craig failed to adequately identify himself, we cannot say that 
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Defendants have established that this argument would likely produce a different 

result either. There is evidence that Craig and Paul went to some lengths to 

comply with Pohle’s request to have Craig’s passport “certified” by the United 

States Embassy in Australia and/or the Australian Government. When the 

requested information was sent to Pohle, he still did not ship the smelter to 

PCM. In other words, there is evidence in the record that Craig took 

reasonable measures to identify himself to no avail. Moreover, there is also 

evidence that Pohle’s request for identification was a mere pretext, his true 

motivation for refusing to ship the smelter being fear of counterfeiting. Under 

the circumstances, we cannot say that raising the identification issue would 

have been likely to produce a different result. The trial court did not abuse its 

discretion in denying Defendants’ motion to correct error. 

B. Motion for Relief From Judgment

[24] Trial Rule 60(B) provides, in part, that “[o]n motion and upon such terms as are 

just the court may relieve a party or his legal representative from a judgment, 

including a judgment by default, for the following reasons: (1) mistake, 

surprise, or excusable neglect[.]” “A motion for relief from a judgment under 

T.R. 60(B) is addressed to the equitable discretion of the trial court.” Minnick v. 

Minnick, 663 N.E.2d 1226, 1228 (Ind. Ct. App. 1996). 

We review the grant or denial of ... Trial Rule 60(B) motions for 

relief from judgment under an abuse of discretion standard. 

[Holmes, 885 N.E.2d at 1270]; Outback Steakhouse of Florida v. 

Markley, 856 N.E.2d 65, 72 (Ind. 2006). On appeal, we will not 

find an abuse of discretion unless the trial court’s decision is 
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clearly against the logic and effect of the facts and circumstances 

before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888, 

889 (Ind. Ct. App. 1998).

Cleveland v. Clarian Health Partners, Inc., 976 N.E.2d 748, 755 (Ind. Ct. App. 

2012), trans. denied. 

The burden is on the movant to demonstrate that relief under 

T.R. 60(B) is both necessary and just. Fairrow v. Fairrow, 559 

N.E.2d 597, 599 (Ind. 1990). Relief under T.R. 60(B) also 

requires that the movant make a prima facie showing of a 

meritorious defense for [reason (1)]. Smith v. Johnson, 711 N.E.2d 

1259, 1265 (Ind. 1999). A meritorious defense refers to 

“evidence that, if credited, demonstrates that a different result 

would be reached if the case were retried on the merits and that it 

is unjust to allow the default to stand.” Id.

In re Rueth Dev. Co., 976 N.E.2d 42, 51 (Ind. Ct. App. 2012), trans. denied. 

[25] Much of what we said with regard to Defendants’ argument that the trial court 

abused its discretion in denying its motion to correct error is relevant here. 

Specifically, our conclusions about the three distinct defenses raised in that 

argument are present here; namely, that Defendants have failed to establish that 

any of them, if raised on retrial, would likely lead to a different result. 

[26] Defendants, however, also argue that the overall equities of the case favor them 

to the extent that reversal is warranted. We disagree with this assessment of the 

record. Aside from the potential defenses mentioned above, which we have 

already determined would be unlikely to produce a different result, Defendants 

also suggest that they were misled about the case, implying that they were 
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unaware default judgment had been entered against them on February 5, 2015, 

until the hearing on damages on May 22, 2015. 

[27] While Defendants may have been mistaken regarding the status of the case, we 

cannot conclude that they were wrongfully misled. The chronological case 

summary (“CCS”) contains several entries indicating both that default 

judgment had been entered; the May 22, 2015, hearing was to determine 

damages only; and Defendants were notified of all of the above. The CCS 

indicates that default judgment was served on Pohle on February 11, 2015, and 

the default judgment order scheduled a hearing on damages only. Defendants 

do not claim that they were not served with the default judgment. Moreover, 

although Defendants claim that their counsel did not know until just before the 

damages hearing that he would be defending against a claim of over 

$145,000.00, there does not seem to be any indication of such ignorance or 

confusion in the record. 

[28] Other circumstances weigh against Defendants. First and foremost, once 

Defendants determined that they would not ship the smelter or Broekema belt 

to PCM, they retained both PCM’s money and the belt. Even assuming that 

Defendants had a legitimate reason to cancel the sale, they do not explain why 

they did not simply refund PCM’s payment. Pohle also seems to be somewhat 

less than forthright about his reason for refusing to ship the smelter to PCM, 

blaming the whole incident on Craig’s alleged failure to establish his identity. 

As we have mentioned, Pohle actually seemed motivated by his fear—of which 

there is no evidence—that Craig intended to appropriate his intellectual 
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property. Defendants have failed to establish that relief from the default 

judgment entered against them is necessary and just. 

III. Damages

[29] Defendants contend that the trial court abused its discretion in computing 

damages, arguing that the amount awarded for lost profits was based on 

speculation and in awarding punitive damages related to their conversion of the 

Broekema belt. 

A. Lost Profits

It is axiomatic that a party injured by a breach of contract may 

recover the benefit of its bargain but is limited in its recovery to 

the loss actually suffered. Fowler v. Campbell, 612 N.E.2d 596, 

603 (Ind. Ct. App. 1993). A party injured by a breach of contract 

may not be placed in a better position than it would have enjoyed 

if the breach had not occurred. Id. A damage award must be 

based upon some fairly defined standard, such as cost of repair, 

market value, established experience, rental value, loss of use, 

loss of profits, or direct inference from known circumstances. Id. 

The damages claimed also must be the natural, foreseeable, and 

proximate consequence of the breach. Id. The foreseeability of 

damages is based upon facts known at the time of entry into the 

contract, not facts existing or known at the time of the breach. 

Berkel & Co. Contractors, Inc. v. Palm & Associates, Inc., 814 N.E.2d 

649, 658-59 (Ind. Ct. App. 2004).

A party injured by a breach of contract may recover 

consequential damages from the breaching party. Rockford Mut. 

Ins. Co. v. Pirtle, 911 N.E.2d 60, 67 (Ind. Ct. App. 2009), trans. 

denied. “Such consequential damages may include lost profits, 

providing the evidence is sufficient to allow the trier of fact to 

estimate the amount with a reasonable degree of certainty and 
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exactness.” Clark’s Pork Farms v. Sand Livestock Systems, Inc., 563 

N.E.2d 1292, 1298 (Ind. Ct. App. 1990). Consequential damages 

may be awarded if the non-breaching party’s loss flows naturally 

and probably from the breach and was contemplated by the 

parties when the contract was made. Rockford, 911 N.E.2d at 67. 

The party seeking such damages bears the burden of proving by a 

preponderance of the evidence that the breach was the cause in 

fact of its loss. Id. “This generally limits consequential damages 

to reasonably foreseeable economic losses.” Id.

L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind. Ct. App. 

2012). 

When the specific issue on review relates to a question of 

inadequate or excessive damages, we will not reverse a damage 

award if it is within the scope of the evidence before the trial 

court, and we neither reweigh the evidence nor judge the 

credibility of the witnesses. Randles v. Ind. Patient’s Comp. Fund,

860 N.E.2d 1212, 1230 (Ind. Ct. App. 2007), trans. denied.

Ponziano Const. Servs. Inc. v. Quadri Enterprises, LLC, 980 N.E.2d 867, 873 (Ind. 

Ct. App. 2012). 

[30] Craig testified that he communicated the importance of receiving the smelter 

from Pohle, specifically, that PCM had just “done a deal” with a company 

named Champion Ammunitions to provide lead ingots. Tr. p. 40. The contract 

with Champion provided, inter alia, that PCM was to be paid a price tied to the 

price of lead listed on the London Metal Exchange (“LME”) at the time. Craig 

also testified that Defendants’ failure to deliver the smelter rendered them 

unable to fulfill their contract with Champion. Finally, Craig introduced 

evidence that, based on the LME price of lead at relevant times, the amounts of 

lead that PCM anticipated delivering but did not, and PCM’s costs, PCM’s lost 
Court of Appeals of Indiana | Opinion 40A01-1509-MI-1432 | June 7, 2016 Page 21 of 23

profits were $127,256.50. Defendants argue that Craig did not mitigate PCM’s 

damages by failing to identify himself sufficiently and PCM’s valuation of the 

lead it would have sold to Champion was artificially high. As we have 

mentioned, Craig made reasonable efforts to comply with Defendants’ request 

to identify himself. Moreover, Defendants’ argument regarding valuation 

amounts to an invitation to reweigh the evidence heard and evaluated by the 

trial court, which we will not do. Defendants have failed to establish that the 

trial court abused its discretion in awarding damages for lost profits. 

B. Punitive Damages

[31] Defendants claim that insufficient evidence supports the trial court’s award of 

$3000.00 in punitive damages to PCM for Defendants’ conversion of the 

Broekema belt. 

The standard for determining if punitive damages were properly 

awarded is whether, considering only the probative evidence and 

the reasonable inferences supporting the judgment, a reasonable 

trier of fact could find by clear and convincing evidence that the 

defendant acted with malice, fraud, gross negligence or 

oppressiveness which was not the result of a mistake of fact or 

law, honest error of judgment, overzealousness, mere negligence, 

or other human failing. Punitive damages may also be awarded 

upon a showing of willful and wanton misconduct. 

Punitive damages are those designed to punish the wrongdoer 

and to discourage him and others from similar conduct in the 

future. Because they are awarded in addition to damages that 

compensate for the specific injury, the injured party has already 

been awarded all that he is entitled to as a matter of law. 

Therefore, the sole issue is whether the defendant’s conduct was 

so obdurate that he should be punished for the benefit of the 
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general public. Punitive damages are awarded upon a showing 

of intentional conduct, which focuses on the defendant’s state of 

mind. 

INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 582-83 (Ind. Ct. App. 

2003) (citations omitted), trans. denied. 

[32] Even if one takes Pohle’s professions of concern about Craig’s identity at face 

value, this has nothing to do with the Broekema belt. Defendants took 

possession of the Broekema belt and apparently kept it instead of allowing PCM 

to arrange alternate shipping to Australia. Indeed, Pohle refused to release the 

belt to Bill Moss, a friend of Craig’s that drove from Wisconsin on Craig’s 

behalf to retrieve it. Defendants had no legitimate interest in the Broekema belt 

which would justify refusing to release it to Moss. Given Pohle’s belief that 

Craig was attempting to “clone” his smelter, tr. p. 97, the trial court could 

reasonably infer that he harbored some malice toward Craig and PCM, which 

motived his conversion of the Broekema belt. The record contains sufficient 

evidence to sustain the trial court’s award of $3000.00 in punitive damages. 

Conclusion

[33] We conclude that the trial court did not abuse its discretion in entering default 

judgment in favor of PCM or in denying Defendants’ motions to correct error 

and for relief from judgment. We further conclude that the trial court did not 

abuse its discretion in determining PCM’s compensatory damages from lost 

profit or punitive damages for Defendants’ conversion of the Broekema belt. 
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The judgment of the trial court is affirmed. 

Bailey, J., and Altice, J., concur.