MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Jay P. Kennedy

Steven E. Runyan

Kroger, Gardis & Regas, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Ryan M. Spahr

Spahr Law Office, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Mobile Home Management 

Indiana, LLC,

Appellant-Defendant/Counterclaim 

and Cross-Claim Plaintiff,

v.

Avon Village MHP, LLC,

Appellee-Plaintiff/Counterclaim and 

Cross-Claim Defendant,

and

State of Indiana Bureau of Motor 

Vehicles and Treasurer of 

Hendricks County Indiana,

Nominal Defendants

January 26, 2017

Court of Appeals Case No.

32A01-1602-MI-199

Consolidated Appeal from the 

Hendricks Superior Court

The Honorable Stephenie D. 

LeMay-Luken, Judge

Trial Court Cause Nos.

32D05-1308-MI-171 and

32D05-1402-PL-9

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 1 of 23
Crone, Judge.

Case Summary

[1] Following a bench trial, Mobile Home Management Indiana, LLC (“MHMI”), 

appeals the trial court’s judgments awarding it a total of $5322 against Avon 

Village MHP, LLC (“New Avon”), in relation to a dispute over twenty mobile 

homes. MHMI contends that the trial court erred in not awarding it relief 

under theories of tortious conversion, unjust enrichment, and constructive trust

and in not awarding it prejudgment interest. Finding no error, we affirm.

Facts and Procedural History1

[2] New Avon correctly observes that “[t]he facts of this case are messy and 

complicated.” Appellee’s Br. at 37. What follows is a recitation of the relevant 

facts most favorable to the trial court’s judgments based on the court’s 

numerous findings, few of which are specifically challenged by MHMI.

[3] Avon Home Leasing, LLC, and several related entities (collectively “Old 

Avon”) owned mobile homes (or “Units”) in a mobile home park (“the Park”) 

that also was owned by Old Avon. In October 2010, a mortgage foreclosure 

1 We remind MHMI that an appellant’s statement of facts “should be a concise narrative of the facts stated in 

the light most favorable to the judgment and should not be argumentative.” Ruse v. Bleeke, 914 N.E.2d 1, 5 

n.1 (Ind. Ct. App. 2009). Also, we remind both parties that exhibits are considered part of the transcript 

pursuant to Indiana Appellate Rule 2(K) and therefore should not be reproduced in an appendix pursuant to 

Indiana Appellate Rule 50(F). And finally, we remind both parties that citations must appear within the 

document’s text and not in footnotes pursuant to Indiana Appellate Rule 22. Ind. Dep’t of Transp. v. Sadler, 33 

N.E.3d 1187, 1189 n.3 (Ind. Ct. App. 2015).

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 2 of 23

 
action was filed against Old Avon, and a receiver was appointed the following 

month. During the receivership, the receiver collected home rents (which 

normally are paid to the owner of the mobile home) and lot rents (which 

normally are paid to the owner of the lot) on the twenty Units that are the focus 

of this litigation. In May 2011, a final judgment and decree of foreclosure was 

issued, pursuant to which the Park’s real estate was sold at sheriff’s sale to 

Special Services Asset Management Company (“Special Services”). The 

foreclosure did not affect Old Avon’s ownership of the Units. In November 

2011, the receivership was terminated. Thereafter, Special Services collected 

home rents and lot rents on the twenty Units. Old Avon was not paying taxes 

on those Units.

[4] In December 2011, Special Services sold the Park’s real estate to New Avon. 

As part of the transaction, Special Services assigned to New Avon its interest in 

a security agreement in Old Avon’s accounts with respect to the twenty Units. 

At the time of the purchase, Old Avon was delinquent in lot rent payments by 

over $14,000. That delinquency, which continued to increase, was assigned to 

New Avon as part of the purchase. After the sale, New Avon collected home 

rents and lot rents on all twenty Units, just as its predecessors had done. New 

Avon also paid taxes on the Units.

[5] Based on the receiver’s and Special Services’ actions as well as Old Avon’s

inactions, New Avon reasonably believed that Old Avon had abandoned the 

twenty Units and took steps to acquire them through the statutory abandoned 

mobile home process under Indiana Code Chapter 9-22-1.5. New Avon 

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searched Bureau of Motor Vehicles (“BMV”) records for the last known address 

for the owner of each of the Units. New Avon was unable to complete the 

process for three of the Units because the BMV did not have records related to 

the VIN numbers. Instead of allowing those Units to deteriorate or disposing of 

them without the protection of the statutory process, New Avon ultimately 

repaired and renovated them to protect the Park and the interests of the Units’

owners. New Avon did not receive any communication from Old Avon about 

those Units.

[6] In May 2012, pursuant to statute, New Avon sent first notices via certified mail

to Old Avon regarding the remaining seventeen Units, informing it that the 

Units would be considered abandoned and subject to sale if the Units were not 

removed within thirty days of the date of the notices. The notices were received 

and signed for by Old Avon’s principal, Sam Misuraca. In June 2012, New 

Avon mailed second notices to the same addresses informing Old Avon that if 

the Units were not removed by June 28 they would be advertised for sale and 

sold at public auction. The second notices were returned as undeliverable. 

Some of the BMV searches on the Units turned up a second mailing address, 

and New Avon sent first and second notices to that address as well. The first 

notices were returned as undeliverable, and the second notices were received 

and signed for. Advertisements for the auction were published twice in a local 

newspaper. New Avon did not receive any communication from Old Avon. 

An auction was conducted on July 9, 2012, and New Avon acquired all 

seventeen Units. After the auction, New Avon reasonably believed that it was 

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 4 of 23
the owner of the Units and prepared an affidavit of sale or disposal for each of 

the Units.

[7] In June 2013, New Avon’s principal, Douglas Pelton, informed MHMI’s 

principal, Bob Miller, that he had completed the abandoned home process on 

the seventeen Units and claimed ownership. On July 15, 2013, MHMI 

purchased the twenty Units from Old Avon for a total of $14,285. In the 

purchase agreement, Old Avon represented that it had not had possession of the 

twenty Units since 2010 and was not aware of any claims against them, but 

would not warrant against the existence of other claims. To the contrary, Old 

Avon was on notice of New Avon’s claims against the seventeen Units and the 

abandonment process undertaken by New Avon based on its receipt of notices 

from New Avon. The bills of sale contained a covenant that each of the Units

“was free from all liens, claims and encumbrances and that Old Avon would 

defend the same against the lawful claims and demands of all persons.” 

Appellant’s App. at 31.

[8] In August 2013, under cause number 32D05-1308-MI-171 (“the MI cause”), 

New Avon filed a complaint against MHMI asking the court to “enter a 

declaratory judgment declaring [New Avon] as the rightful owner” of the 

seventeen Units that had been sold at auction. Id. at 64. MHMI filed a 

counterclaim against New Avon and requested a declaratory judgment in its 

favor, an order directing New Avon to surrender the Units, and an accounting 

and judgment against New Avon for rents that had not been paid to Old Avon 

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 5 of 23
or MHMI, as well as prejudgment interest.

2

 In October 2013, the parties “filed 

cross-motions for summary judgment as to who was the rightful owner” of the 

Units. Mobile Home Mgmt. Ind., LLC v. Avon Vill. MHP, LLC, 17 N.E.3d 275, 

278 (Ind. Ct. App. 2014), trans. denied (2015). In December 2013, the trial court 

granted New Avon’s motion and denied MHMI’s motion. In January 2014, 

New Avon obtained title to the seventeen Units.

[9] MHMI appealed the trial court’s summary judgment ruling. Another panel of 

this Court considered as a matter of first impression whether New Avon had 

complied with the notice statutes governing the abandoned mobile home 

process. In a September 2014 opinion, the panel held that New Avon had not 

done so and therefore reversed and remanded with instructions to enter 

judgment in favor of MHMI. New Avon filed a petition to transfer, which our 

supreme court denied in March 2015. In September 2015, the trial court 

entered an order granting summary judgment in favor of MHMI and declaring 

MHMI the owner of the seventeen Units at issue. Each party’s damages and 

offsets were yet to be determined.

[10] In February 2014, while the appeal in the MI cause was pending, New Avon 

filed a complaint for unjust enrichment against MHMI under cause number 

32D05-1402-PL-9 (“the PL cause”) to recover repair costs, insurance payments, 

and taxes on the three unauctioned Units. MHMI counterclaimed and 

2 Both New Avon and MHMI named the BMV and the Hendricks County treasurer as nominal defendants.

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 6 of 23

 
requested an accounting and a judgment for unpaid rents and interest. MHMI 

did not attempt to add Old Avon as a party to either lawsuit. In April 2015, the 

causes were consolidated and a bench trial was set for December 1, 2015.

[11] On November 25, 2015, less than a week before trial, MHMI filed a trial brief 

in which it alleged for the first time that it was entitled to relief under theories of

tortious conversion, criminal conversion, unfair competition, unjust 

enrichment/imposition of constructive trust, and fraud. MHMI also asserted 

for the first time that it was entitled to treble damages, litigation costs, and 

attorney’s fees under the Crime Victims Relief Act (“CVRA”). On November 

30, New Avon filed an objection, a motion to strike MHMI’s trial brief, and a 

motion for an order limiting testimony and evidence to the issues raised by the 

pleadings. New Avon asserted that “[t]he new causes of action raised by 

MHMI’s Trial Brief are tantamount to ‘Trial by Ambush.’” Appellant’s App. at 

121.

[12] On December 1, the first day of trial, the court informed the parties that it had 

not yet read either filing, would take the matter under advisement, and could 

“disregard testimony or evidence” once it had ruled. Tr. at 8. After MHMI 

rested its case, the trial court issued a written order stating that it would “only 

consider those sections [of New Avon’s trial brief] for which evidence is 

presented at trial and those sections that support previously pled allegations and 

theories” and that “the presentation of evidence and testimony at the trial in 

this matter shall be limited to the issues raised by the effective pleadings in the 

matter.” Appellant’s App. at 124-25. The court told the parties, “I understand 

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we have a notice pleading state but notice pleading is still notice pleading, you 

still have to put people on notice and trial briefs do not put folks on notice.” Tr. 

at 388. The trial concluded on December 2. On December 14, MHMI filed a 

motion to reconsider the order on New Avon’s motion to strike. New Avon 

filed a response to MHMI’s motion.

[13] MHMI filed a motion for findings of fact and conclusions thereon, which the 

trial court granted, and the parties submitted proposed findings and 

conclusions. On January 7, 2016, the trial court issued extensive findings and 

separate judgments in each cause. The relevant conclusions in the MI cause 

judgment read as follows:

General Conclusions of Law:

5. Indiana Code § 9-22-1.5 et seq. governs the Abandoned Mobile 

Home process.

6. Prior to the published opinion resulting from this case going 

up on appeal, ... the statute had never been interpreted by a 

higher court.

7. I.C. § 9-22-1.5 et seq. as it existed at the time did not define 

“abandoned” and, at the very least, was subject to multiple 

interpretations regarding the procedure to be followed.

8. MHMI was not a purchaser without notice of [New Avon’s] 

claims. The Purchase Agreement for the 17 Units with Old 

Avon explicitly stated that the 17 Units had not been in Old 

Avon’s possession for years. Additionally, the dates of emails 

between Pelton and Miller make it very clear that Miller was 

aware of [New Avon’s] claims of ownership through the 

Abandoned Mobile Home Process before MHMI closed the deal 

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with Old Avon. Moreover, the purchase price of the 17 Units, 

each [at] approximately $700.00, is very low compared to the 

values placed on the units by either party, and seems to reflect the 

uncertain state of the title to the 17 Units.

9. [New Avon’s] process was determined flawed and, as a result, 

MHMI is the owner of the 17 Units.

10. “An accounting is a suit in equity governed by equitable 

principles and addressed to the sound discretion of the trial court. 

The trial court has full discretion to fashion equitable remedies 

that are complete and fair to all parties involved.” Hammes v. 

Frank, 579 N.E.2d 1348, 1355 (Ind. Ct. App. 1991) (citations 

omitted).

....

MHMI’s Claims to Disgorge Lot Rents Collected by [New Avon]

14. [New Avon] is and has been at all relevant times, the owner 

of the Park.

15. As the owner of the lots on the Park, [New Avon] is entitled 

to assess and charge lot rent for the occupation of its lots by 

mobile homes.

16. MHMI is not entitled to receive the lot rents collected by 

[New Avon] related to the 17 Units.

....

19. At Trial, MHMI urged the disgorgement of lot rents as a 

deterrent against other mobile home park owners. However, 

even if their characterizations of [New Avon] and Pelton were to 

be believed, no deterrent is necessary in light of recent revisions 

to the statute, IC § 9-22-1.5 et seq. The new, current version of 

the statute provides criteria to evaluate whether or not a mobile 

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 9 of 23
home is considered abandoned (IC § 9-22-1.5-1.5). More 

importantly, the new version of the statute explicitly makes the 

process unavailable to mobile home parks. (IC § 9-22-1.5-1.3). 

Therefore, any disgorgement of the lot-rents collected would 

have no deterrent value.

20. It would be inequitable to disgorge the lot rents collected by 

[New Avon]. Where MHMI had the opportunity to—and, in 

fact, did—mitigate its damages by purchasing more mobile 

homes, [New Avon] had no opportunity to mitigate its damages 

related to lot-rents, because each lot only holds one mobile home, 

and it could not otherwise lease out the lots which were occupied 

by the 17 Units.

21. Accordingly, MHMI is not entitled to any of the lot rents, 

assessed or unassessed, collected or uncollected, by [New Avon] 

related to the 17 Units.

MHMI’s Claims for Repairs to the 17 Units

22. MHMI is not entitled to assess speculative-repair costs to the 

17 Units against [New Avon].

....

MHMI’s Claim for Moving and Setting Expenses

26. MHMI is not entitled to the cost to move and re-set the 17 

Units.

....

MHMI’s Claim to Disgorge Home Rents Collected by [New Avon] 

Related to the 17 Units

....

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31. [New Avon] had no ownership claim of any sort over the 17 

Units prior [to] July 9, 2012, the date of its auction under the 

Abandoned Mobile Home Process.

32. However, [New Avon] was entitled to collect Home Rents 

on the 17 Units against the accrued and accruing Lot-rents 

pursuant to the Security Agreement it was assigned when it 

purchased the Park.

33. Additionally, [New Avon] had statutory lien[s] against the 

17 Units due to the accrued but unpaid lot-rents under IC § 16-

41-27-29: “(a) Subject to subsection (b), the owner, operator, or 

caretaker of a mobile home community has a lien upon the 

property of a guest in the same manner, for the same purposes, 

and subject to the same restrictions as an innkeeper’s lien or a 

hotel keeper’s lien.” [Subsection (b) deals with lien priority and 

is not relevant to this case].

34. Following the auction held on July 9, 2012, [New Avon] 

collected home rents under the auspices of ownership.

35. MHMI did not purchase the 17 Units until July 15, 2013, 

and not without notice of [New Avon’s] competing claims of 

ownership.

36. Because MHMI knew the disputed ownership position it 

purchased, it would not be equitable to award it home rents 

which were collected prior to its date of purchase of the 17 Units, 

July 15, 2013.

37. Awarding MHMI home-rents predating its purchase would 

amount to an inequitable windfall for MHMI, who bought the 17 

Units for de-minim[i]s value with full present-sense knowledge 

that someone else claimed ownership.

38. Further, awarding MHMI home-rents predating its purchase 

of the 17 Units would punish [New Avon] and its lien rights for 

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 11 of 23
the misrepresentations of Old Avon regarding the status of liens 

against the 17 Units. MHMI may have an action against Old 

Avon for its misrepresentations, but it cannot assess those losses 

against [New Avon].

39. However, by virtue of its purchase of the 17 Units and [New 

Avon’s] defective Abandoned Mobile Home Process Claim, 

MHMI is entitled to the actual value of the rents collected from 

the 17 Units by [New Avon] from July 15, 2013 to the present, 

which amounts to $58,293.00.

MHMI’s Claim for Hypothetical Home Rents

40. MHMI is not entitled to assess “lost rents” against [New 

Avon] for the months in which the 17 Units did not produce 

home rental income.

....

MHMI’s Request for Attorney’s Fees and Litigation Expenses

44. “Indiana has consistently followed the American Rule.” 

Loparex, LLC v. MPI Release Technologies, LLC, 964 N.E.2d 806, 

816 (Ind. 2012).[3]

45. There is no contractual relationship between the parties 

which gives rise to a claim for attorney’s fees.

46. MHMI has not plead or proven any theory of relief which 

entitles it to attorney’s fees.

47. There is no equitable reason to depart from the American 

3 Under the American Rule, “parties pay their own attorney fees absent an agreement between the parties, 

statutory authority, or rule to the contrary.” Vasquez v. Phillips, 843 N.E.2d 61, 64 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 32A01-1602-MI-199 | January 26, 2017 Page 12 of 23

 
Rule and require [New Avon] to fund MHMI’s case and 

reimburse its attorney’s fees and expenses of litigation.

48. Accordingly, MHMI shall bear its own attorney’s fees and 

expenses of litigation.

MHMI’s Request for Prejudgment Interest

49. “When the trier of fact determines liability for damages 

exists, prejudgment interest is proper only where a simple 

mathematical computation is required.” Hammes v. Frank, 579 

N.E.2d 1348, 1357 (Ind. Ct. App. 1991)[.]

50. This case invokes a medley of claimed damages and claimed 

set-offs, being complicated by a dispute over ownership which 

was only resolved after a mid-litigation appeal. The damages of 

the parties have never been readily calculable.

51. Prejudgment interest is not an appropriate remedy in this 

case, for either party.

[New Avon’s] Claims for Offsets for Repairs, Insurance, and Taxes 

Paid Related to 17 Units

....

59. It is equitable to award [New Avon] a set-off of $67,415 for 

[repairs and taxes], as they were actually-incurred costs, 

undertaken with a belief of ownership, and which provide a 

substantial benefit to MHMI: not the least of which being the 

preservation of the income-producing ability of the 17 Units into 

the future.

JUDGMENT

The Court now enters the following judgment:

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1. Judgment was previously rendered in favor of [MHMI] as to 

Count 1 of [New Avon’s] Complaint, adjudging MHMI as the 

owner of the 17 Units and rendering Counts I and II of 

[MHMI’s] Counterclaims (for Declaratory Judgment and an 

Order Directing Surrender and Turnover) moot, except as 

provided below.

2. Judgment for [MHMI] on Count III of [MHMI’s] 

Counterclaim, for Accounting and Judgment. MHMI is initially 

entitled to $58,293.00 as disgorged home-rents collected by [New 

Avon]. However, [New Avon] is entitled to set-offs in the 

amount of $67,415.00. Because [New Avon’s] set-offs exceed the 

amount to which MHMI is entitled, the Court awards MHMI 

$1.00 as a nominal judgment against [New Avon].

Appellant’s App. at 35-43 (citation format altered).

[14] The trial court’s findings and conclusions regarding the three units involved in 

the PL cause are substantially similar to those regarding the seventeen units 

involved in the MI cause. The differing and/or dispositional conclusions read 

as follows:

General Conclusions:

5. At no time did [New Avon] have an ownership interest in the 

3 Units, actual or believed.

6. Despite not having an ownership interest in the 3 Units, [New 

Avon] expended funds and collected rents related to the 3 Units 

as a measure of mitigation of damages, as its alternative was to 

do nothing, which would harm both the 3 Units and the Park.

7. Critically, there was no legal barrier preventing MHMI from 

collecting the 3 Units at any time after its purchase, and there 

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was no testimony at trial that [New Avon] prevented or 

attempted to prevent MHMI from collecting the 3 Units. Rather, 

MHMI appears to have made the decision to leave the 3 Units 

(which it owned without any competing claims of ownership) on 

[New Avon’s] Park while the claims related to the other 17 Units 

... were litigated.

8. Equity does not require this Court to punish either party for 

their actions or inactions related to the 3 Units. Rather, equity 

demands that this Court fashion a judgment which is fair to both 

parties in light of the situation between them.

....

MHMI’s Claim to Disgorge Lot Rents Collected by [New Avon]

14. [New Avon] is and has been at all relevant times, the owner 

of the Park.

15. As the owner of the lots [i]n the Park, [New Avon] is entitled 

to assess and charge lot rent for the occupation of its lots by 

mobile homes.

16. MHMI is not entitled to receive the lot rents collected by 

[New Avon] related to the 3 Units.

....

MHMI’s Claims for Repairs to the 3 Units

20. MHMI is not entitled to assess speculative-repair costs to the 

3 Units against [New Avon].

....

MHMI’s Claim to Disgorge Home Rents Collected by [New Avon] 

Related to the 3 Units

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....

29. [New Avon] has never had an ownership claim over the 3 

Units.

30. However, [New Avon] was entitled to collect home rents on 

the 3 Units against the accrued and accruing unpaid Lot-rents 

pursuant to the Security Agreement it was assigned when it 

purchased the Park.

31. Additionally, [New Avon] had a statutory lien against the 3 

Units due to the accrued but unpaid lot-rents under IC § 16-41-

27-29: “(a) Subject to subsection (b), the owner, operator, or 

caretaker of a mobile home community has a lien upon the 

property of a guest in the same manner, for the same purposes, 

and subject to the same restrictions as an innkeeper’s lien or a 

hotel keeper’s lien.” [Subsection (b) deals with lien priority and 

is not relevant to this case].

32. MHMI did not purchase the 3 units until July 15, 2013.

33. Awarding MHMI home-rents predating its purchase would 

amount to an inequitable windfall for MHMI.

34. Further, awarding MHMI home-rents predating its purchase 

of the 3 Units would punish [New Avon] and its lien rights for 

the misrepresentation of Old Avon regarding the status of liens 

against the 3 Units. MHMI may have an action against Old 

Avon for its misrepresentations, but it cannot assess those losses 

against [New Avon].

35. However, by virtue of its purchase of the 3 Units, MHMI is 

entitled to the actual value of the rents collected from the 3 Units 

by [New Avon] from July 15, 2013 to the present, which 

amounts to $16,487.00.

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MHMI’s Claims for Hypothetical Home Rents

36. MHMI is not entitled to assess “lost rents” against [New 

Avon] for the months in which the 3 Units did not produce home 

rental income.

....

MHMI’s Request for Attorney’s Fees and Litigation Expenses

....

44. ... MHMI shall bear its own attorney’s fees and expenses of 

litigation.

MHMI’s Request for Prejudgment Interest

....

47. Prejudgment interest is not an appropriate remedy in this 

case, for either party.

[New Avon’s] Claims for Offsets for Repairs, Insurance, and Taxes 

Paid Related to the 3 Units

....

53. It is equitable to award [New Avon] a set-off of $11,256.00 

for [repairs and taxes], as they were actually-incurred costs which 

provide a substantial benefit to MHMI: Not the least of which 

being the preservation of the income-producing ability of the 3 

Units into the future.

JUDGMENT

The Court now enters the following judgment:

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1. Judgment for [MHMI] on its Counterclaim for Accounting 

and Judgment. MHMI is initially entitled to $16,487.00 as 

disgorged home-rents collected by [New Avon]. However, [New 

Avon], by way of its Complaint, is entitled to set-offs in the 

amount of $11,256.00 for repairs and taxes. Therefore, the Court 

awards MHMI $5,321.00 as a judgment against [New Avon].

Id. at 53-59.

[15] The trial court also issued the following order on MHMI’s motion to reconsider

the order on New Avon’s motion to strike MHMI’s trial brief: “The Court 

reviewed [MHMI’s motion] and the respective response and considered all 

previous pled allegations as set forth in [MHMI’s] complaint and all evidence 

and theories presented at trial.” Appellant’s App. at 60. MHMI appealed the 

judgments in both causes, and we granted its motion to consolidate the appeals.

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Discussion and Decision

Section 1 – The trial court did not abuse its discretion in not 

awarding MHMI relief under theories of tortious conversion, 

unjust enrichment, and constructive trust.

[16] MHMI first contends that the trial court erred in not awarding it relief under 

theories of tortious conversion, unjust enrichment, and constructive trust.4

 We 

disagree. In Wysocki v. Johnson, 18 N.E.3d 600 (Ind. 2014), our supreme court 

held that where the pleadings give the trial court a choice to find a defendant 

liable for either a common-law tort or a quasi-criminal offense under the 

CVRA, “the court necessarily has discretion to choose tort liability and reject 

quasi-criminal liability,” even when the civil tort and the quasi-criminal offense 

are “closely related.” Id. at 605.5

 We see no reason why the same principle 

should not apply in this case, where MHMI has asserted that its counterclaims

encompass alternative avenues of relief: either a declaratory judgment and an 

4 MHMI accuses the trial court of “striking” these theories. Appellants’ Br. at 31. The order on MHMI’s 

motion to reconsider clearly indicates that the court did not strike them, even though it would have been well 

within its discretion to do so. See Hilliard v. Jacobs, 927 N.E.2d 393, 400-01 (Ind. Ct. App. 2010) (finding no 

abuse of discretion in denial of plaintiff’s motion for leave to amend complaint “to add new legal theories 

that were available to her at the outset of the case” three years earlier), trans. denied; Butler ex rel. Estate of Butler 

v. Kokomo Rehab. Hosp., Inc., 744 N.E.2d 1041, 1047 (Ind. Ct. App. 2001) (“For a defendant to make efficient 

and educated legal decisions regarding their case, the complaint must put the defendant on notice concerning 

why it is potentially liable and what it stands to lose.”), trans. denied. Not until MHMI filed its trial brief was 

New Avon put on notice that it was potentially liable for conversion, unjust enrichment, and fraud and that it 

stood to lose treble damages, litigation costs, and attorney’s fees.

5 Citing Wysocki, MHMI properly concedes that “this Court is unlikely to award damages under the CVRA”

in this case. Appellant’s Br. at 33.

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accounting or damages for tortious conversion and unjust enrichment and 

imposition of a constructive trust.

6

[17] MHMI emphasizes that “‘[m]ens rea is not an element of tortious conversion.” 

Appellant’s Br. at 35 (quoting Coffel v. Perry, 452 N.E.2d 1066, 1069 (Ind. Ct. 

App. 1983)); see Campbell v. Criterion Grp., 621 N.E.2d 342, 346 (Ind. Ct. App. 

1993) (describing tortious conversion as “appropriat[ing] another’s personal 

property for the tortfeasor’s own use and benefit, in exclusion and defiance of 

the owner’s rights, and under an inconsistent claim of title.”), opinion on reh’g. 

But conversion contemplates “wrongful action[,]” Chesterton State Bank v. Coffey, 

454 N.E.2d 1233, 1237 (Ind. Ct. App. 1983), as does a constructive trust. See 

Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009) (“A constructive trust 

is a creature of equity, devised to do justice by making equitable remedies 

available against one who through fraud or other wrongful means acquires 

property of another. A constructive trust is imposed where a person holding 

title to property is subject to an equitable duty to convey it to another on the 

ground that he would be unjustly enriched if he were permitted to retain it.”) 

(citation omitted). Furthermore, MHMI asserted in its trial brief that “[t]his 

case is about deceptive conduct.” Appellant’s App. at 106. The trial court 

obviously disagreed with this assertion based on the evidence and testimony 

before it, and we will not reweigh that evidence or assess witness credibility. In 

6 MHMI cites no authority for its suggestion that the trial court should have made findings regarding why it 

did not award MHMI the relief requested in its trial brief.

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re Moeder, 27 N.E.3d 1089, 1097 (Ind. Ct. App. 2015), trans. denied. Likewise, 

we will not second-guess the trial court’s balancing of the equities with respect 

to both parties’ accounting claims. See Hammes, 579 N.E.2d at 1355 (“An 

accounting is a suit in equity governed by equitable principles and addressed to 

the sound discretion of the trial court. The trial court has full discretion to 

fashion equitable remedies that are complete and fair to all parties involved.”) 

(citation omitted). The trial court did not abuse its discretion in not awarding 

MHMI relief under theories of tortious conversion, unjust enrichment, and 

constructive trust. Cf. Wysocki, 18 N.E.3d at 605 (“[A] trial court may find 

compensatory damages to be warranted, yet be reluctant to find a defendant’s 

conduct ‘heinous’ enough to punish under the CVRA.”).7

Section 2 – The trial court did not abuse its discretion by not 

awarding prejudgment interest to MHMI.

[18] MHMI also claims that the trial court erred by not awarding it prejudgment 

interest. An award of prejudgment interest is founded upon the theory that 

there has been a deprivation of the plaintiff’s use of money and that unless 

7 Our resolution of this issue disposes of most of MHMI’s arguments regarding damages and offsets for 

various rents and repairs, which are premised on its assertion that the trial court erred in not awarding it relief 

under theories of conversion, unjust enrichment, and constructive trust. The only argument not premised on 

that assertion is that the trial court erred by not awarding MHMI home rents predating its purchase of the 

mobile homes from Old Avon. Essentially, MHMI argues that New Avon is not entitled to those rents 

because it had no legal basis for collecting them under the security agreement, and therefore they should be 

awarded to MHMI. But this argument ignores the trial court’s conclusions that New Avon was entitled to 

those rents pursuant to a statutory lien and that awarding them to MHMI would amount to an inequitable 

windfall for MHMI. MHMI does not challenge these conclusions, and therefore we affirm the trial court. 

Assuming for argument’s sake that New Avon was not legally entitled to the pre-purchase home rents, we 

note that MHMI failed to implead a third party that was.

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interest is added, the plaintiff cannot be fully compensated for the loss. Wayne 

Twp. v. Lutheran Hosp. of Ft. Wayne, Inc., 590 N.E.2d 1130, 1134 (Ind. Ct. App. 

1992), trans. denied. Prejudgment interest “is recoverable not as interest but as 

additional damages to accomplish full compensation.” Id. “Prejudgment 

interest is justified where there has been an unreasonable delay in the payment 

of an amount ascertainable in accordance with fixed rules of evidence and 

accepted standards of valuation.” Harlan Sprague Dawley, Inc. v. S.E. Lab Grp., 

Inc., 644 N.E.2d 615, 617 (Ind. Ct. App. 1994), trans. denied (1995). Damages 

that are the subject of a good-faith dispute cannot allow for a prejudgment 

interest award, “nor is such an award proper when the trial court must exercise 

its judgment to assess the amount of damages[.]” Clark v. Hunter, 861 N.E.2d 

1202 1208 (Ind. Ct. App. 2007). “Prejudgment interest is proper only where a 

simple mathematical computation is required.” Dale Bland Trucking, Inc. v. 

Kiger, 598 N.E.2d 1103, 1106 (Ind. Ct. App. 1992), trans. denied. “Our standard 

of review is for an abuse of discretion, focusing on the trial court’s threshold 

determination of whether the facts satisfy the test for prejudgment interest.” 

Harlan, 644 N.E.2d at 617.

[19] The undisputed findings support the trial court’s conclusion that this case 

involved “a medley of claimed damages and claimed set-offs, being complicated 

by a dispute over ownership which was only resolved after a mid-litigation 

appeal,” and that the parties’ damages “have never been readily calculable.” 

Appellant’s App. at 41. The ownership of the mobile homes, as well as the 

damages and offsets to which each party was entitled, were matters of 

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considerable good-faith dispute, and the trial court exercised its legal judgment 

and equitable discretion in assessing the amount of damages.8

 Under these 

circumstances, we conclude that the trial court did not abuse its discretion in 

not awarding MHMI prejudgment interest. Therefore, we affirm the trial court 

in all respects.

[20] Affirmed.

May, J., and Mathias, J., concur.

8 MHMI argues,

The trial court’s reference to a “medley” of claims suggests that the trial court merely failed to 

wade into the evidence and perform the required calculation. MHMI is not seeking 

prejudgment interest on all of its claims. It is seeking prejudgment interest only on those claims 

which are easily calculable from New Avon’s books and records - damages relating to rents New 

Avon actually collected (Pre-Purchase and Post-Purchase Rents, and Lot Rents). MHMI does not 

seek prejudgment interest for repair costs or “additional” home rents that should have been 

collected.

Appellant’s Reply Br. at 12. This argument ignores the fact that any mathematical computation was possible 

only after the trial court exercised its legal judgment and equitable discretion to determine the damages and 

offsets that each party was entitled to. MHMI’s suggestion that the trial court somehow shirked its duty is 

not well taken.

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