Court of Appeals of Indiana | Memorandum Decision 88A01-1412-MF-551 | October 27, 2015 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Steven A. Gustafson

The Law Office of Richard R. Fox

New Albany, Indiana

Douglas C. Leatherbury

Salem, Indiana

ATTORNEYS FOR APPELLEE

Mark D. Johnson

Allen & Johnson, LLC

Salem, Indiana

Attorney for Anthony Arnold, Rhonda 

Arnold, Daniel Arnold, and Lee Ann Arnold

Mark Clark

Salem, Indiana

Attorney for Mid-Southern Savings Bank, 

FSB

I N T H E

COURT OF APPEALS OF INDIANA

Ronald Miller, d/b/a United 

Country Washington County

Indiana Real Estate, LLC.,

Appellant-Defendant,

v.

Anthony Arnold, Rhonda 

Arnold, Lee Ann Arnold, Daniel 

Arnold, Mid-Southern Savings 

Bank, FSB and Washington 

County Treasurer,

Appellee-Plaintiff

October 27, 2015

Court of Appeals Case No.

88A01-1412-MF-551

Appeal from the Washington 

Circuit Court

The Honorable Larry W. Medlock, 

Judge

Trial Court Cause No.

88C01-1311-MF-740
Court of Appeals of Indiana | Memorandum Decision 88A01-1412-MF-551 | October 27, 2015 Page 2 of 14

Altice, Judge.

Case Summary

[1] Ronald O. Miller, d/b/a United Country Washington County Indiana Real 

Estate, LLC, (Miller) filed a complaint for breach of conditional land sale 

contract (the Land Contract) and foreclosure against Anthony, Rhonda, Lee 

Ann, and Daniel Arnold (collectively referred to as the Arnolds). The Arnolds 

filed various counterclaims against Miller. Following a two-day bench trial, the 

trial court found in favor of the Arnolds, releasing them from the Land Contract 

and entering judgment in their favor in the amount of $19,630.21. Miller filed a 

motion to correct error and a motion for a new trial “to specifically allow new 

evidence on the issues of payment made on the Land Contract for principal, 

interest, real estate taxes and insurance”. Appellant’s Appendix at 177. The trial 

court denied these motions following a hearing. On appeal, Miller contends 

that the trial court failed to properly apply the terms of the Land Contract and 

erred in denying the motion to correct error.

[2] We affirm.

Facts & Procedural History

[3] Miller purchased the property in question on or about January 15, 2002. 

Situated on the property was a mobile home in which various members of the 

Arnold family had lived over the years. Although the details in the record are 

vague, it appears that Michael Arnold (not a party in this case) had a land 
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contract with Miller prior to 2004. Michael’s parents, Anthony and Rhonda, 

moved into the mobile home at some point and, on February 23, 2004, entered 

into the Land Contract with Miller, which was apparently a continuation of 

Michael’s contract. The underlying property was also subject to a mortgage in 

favor of Mid-Southern Savings Bank (the Bank). Rhonda obtained insurance 

on the property, and the policy included Miller and the Bank as co-loss payees.

[4] The mobile home burned in 2011 and was a total loss. Thereafter, insurance 

checks were issued in the amount of $17,000 for loss of the trailer and $8000 for 

its contents. It took Miller several months to find a replacement mobile home 

for the property, but the Arnolds continued to make monthly payments on the 

Land Contract. Miller eventually purchased a replacement from a nearby 

property for $9900. The Bank provided Miller with the remainder of the funds 

for the loss of the trailer, totaling $7100. Miller also appears to have received 

$4000 for loss of personal property (part of the $8000 check) to be used for

cleanup of the site.1

[5] With the funds remaining after purchasing the mobile home, Miller testified 

that he paid an additional $100 to the seller, purchased local permits totaling 

$160, paid $2000 to have the replacement mobile home relocated, spent $1000 

for cleanup, and additional funds for materials and setup. The Arnolds 

disputed the amount of the relocation and cleanup expenses and indicated that 

 

1 Although we have had difficulty finding support in the record for this factual statement, Miller includes this 

as fact in his appellate brief and does not challenge this specific finding of fact entered by the trial court.
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they did most of the cleanup themselves. Miller provided no supporting 

evidence at trial regarding these additional expenditures.

[6] Anthony and Rhonda moved out of the mobile home around April 2012, and 

their son and daughter-in-law, Daniel and Lee Ann, assumed Anthony and 

Rhonda’s obligations under the Land Contract. Although Miller did not give 

written consent for the assignment of the Land Contract, he actively acquiesced 

in the transfer of Anthony and Rhonda’s financial obligations to Daniel and 

Lee Ann. Miller often came to the property and accepted monthly payments 

from Lee Ann.

[7] Whereas Anthony and Rhonda had paid the insurance premiums themselves 

prior to the fire, Miller secured insurance and added $50 per month to Daniel 

and Lee Ann’s payments. Miller testified at trial that he did not know the 

actual cost of the insurance. Miller also charged the Arnolds for property taxes 

that remained in his name. Between 2011 and 2013, Miller knowingly provided 

the Arnolds with false written statements regarding the amount of real estate 

taxes and insurance actually owed. In total, he overbilled the family $107.25 

for insurance and $1647.14 for taxes during this period.

[8] In December 2012 and January 2013, while Lee Ann was hospitalized, Miller 

allowed the water and electricity to the mobile home to be shut off. He also 

placed a hold on the utilities, which resulted in the Arnolds being unable to pay 

to have them restored. As a result, the water pipes in the mobile home burst 

and caused $2500 in water damage.
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[9] Miller refused payments tendered by Lee Ann in October 2013 and all 

subsequent payments. He then, on November 22, 2013, filed a complaint 

against the Arnolds for breach of the Land Contract and foreclosure of said 

contract. Miller amended the complaint twice. The subsequent amendments 

included the Bank and the Washington County Treasurer as defendants, 

recognizing their prior liens on the real estate. Thereafter, the Bank filed a 

counterclaim against Miller to foreclose on its mortgage lien. 

[10] Following a two-day bench trial, the trial court issued findings of fact and 

conclusions of law and entered judgment against Miller on October 15, 2014. 

Specifically, the court foreclosed on the Bank’s lien and entered a judgment of 

$13,664.81 in favor of the Bank, $17,130.21 in favor of the Arnolds,2 and 

$2500.00 (for water damage) in favor of Daniel and Lee Ann Arnold. The 

court ordered the property to be sold by the Sheriff of Washington County.

[11] On November 13, 2014, Miller filed a motion to correct error and a motion for 

a new trial “to specifically allow new evidence on the issues of payment made on 

the Land Contract for principal, interest, real estate taxes and insurance”. 

Appellant’s Appendix at 177 (emphasis supplied). Among the new evidence 

Miller sought to introduce were spreadsheets prepared by a CPA, a copy of the 

Arnolds’ water statement from October 2013 to March 2014, and his own 

 

2 This amount included $6890 (the difference between the insurance proceeds and the cost of the replacement 

trailer), $6013 (treble damages for the tax and insurance overcharges, as well as associated attorney fees), and 

$4228 (the equity acquired by the Arnolds during the Land Contract minus uncollected payments from 

October 2013 through October 2014). 
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affidavit. Following a hearing, the trial court denied, in relevant part, the 

motion to correct error. Miller now appeals, challenging only the judgments 

entered in favor of the Arnolds.3 Additional facts will be provided below as 

needed.

Discussion & Decision

I. The Land Contract

[12] Miller contends the trial court imposed obligations on him that were not set out 

in the Land Contract. He claims these “bogus obligations” included a duty to 

replace the destroyed mobile home, a duty to pay utility bills, and a duty to 

account for insurance proceeds. Appellant’s Brief at 8. 

[13] On appeal from a bench trial, this court shall not set aside the trial court’s 

findings or judgment unless clearly erroneous, and due regard shall be given to 

the opportunity of the trial court to judge the credibility of the witnesses. First 

Response Servs., Inc. v. Cullers, 7 N.E.3d 1016, 1021 (Ind. Ct. App. 2014). Where,

as here, the trial court has issued findings of fact and conclusions of law, we 

apply a two-tiered standard of review, determining whether the evidence 

supports the findings and the findings support the judgment. Id. We review for 

clear error and will reverse only if the findings are unsupported by any evidence 

or reasonable inferences drawn from the evidence or if the judgment is 

 

3 Miller makes no appellate argument with respect to the judgment entered in favor of the Bank for 

foreclosure of its mortgage lien. Accordingly, we do not review that portion of the judgment on appeal.
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unsupported by the findings and conclusions. Id. Although we defer 

substantially to the trial court’s findings of fact, we apply a de novo standard to 

its conclusions of law. Id.

[14] Miller initially argues that the trial court erroneously determined he was 

required to replace the mobile home when it burned down. Miller claims that 

he had the option of either using the insurance proceeds for repairs or applying 

them to the Arnolds’ contract debt.

[15] With respect to application of insurance proceeds, the Land Contract expressly 

provided: 

Except as otherwise may be agreed in writing, any insurance 

proceeds received as payment for any loss of or damage to the 

Real Estate covered by Required Insurance shall be applied to 

restoration and repair of the loss or damage on [sic] fashion as 

Seller reasonably may require, unless such restoration and repair 

is not economically feasible or there exists an uncured Event of 

Default by Purchaser under this Contract on the date of receipt of 

such proceeds, in either of which events, the proceeds may be 

applied, at Seller’s option, toward prepayment of the Contract 

Balance, with any excess to be paid to Purchaser.

Appellant’s Appendix at 30. The clear import of this provision is that any 

insurance proceeds are to be used for restoration and repair or credited toward 

the contract balance, with any excess paid to the Arnolds. Here, the evidence 

favorable to the judgment establishes that Miller used a portion of the insurance 
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proceeds to replace the mobile home. The trial court did not err in determining 

that the remaining proceeds should have been credited to the Arnolds.4

[16] In a related argument, Miller contends that the trial court erred when it found

that the Arnolds were entitled to an accounting of the insurance proceeds. 

Specifically, Miller challenges findings 11 and 13:

11. That Ronald O. Miller never gave the Defendants, Anthony 

and/or Rhonda Arnold an accounting of the $7,100.00 nor did 

he give them credit for the funds.

***

13. Ronald O. Miller also was provided an insurance check in 

the amount of $4,000.00 for the contents of the trailer to be used 

for clean up. Ronald O. Miller never provided accounting for 

those proceeds.

Appellant’s Appendix at 14.

[17] Miller asserts that a duty to provide an accounting is fiduciary in nature and can 

only be imposed on a person whom the law treats as a trustee. In support,

Miller cites a trust statute and case, as well as cases involving claims of breach 

of fiduciary duty and constructive fraud. We find these authorities wholly

 

4

In passing, Miller asserts that the destruction of the mobile home by the fire was an event of default. 

Although the Land Contract provides that “[t]he actual or threatened alteration, demolition, or removal of 

any improvements” is an event of default, a fair reading of this provision is that it applies to intentional acts 

of the parties. Appellant’s Appendix at 35. Moreover, the record establishes that Miller did not treat the fire as 

an event of default in 2011, and he continued the contract for a number of years. His argument, therefore, is 

disingenuous. 
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inapposite. Moreover, Miller’s focus on the trial court’s use of the term 

“accounting” is clearly misguided. The trial court, here, did not intend to find 

that a fiduciary obligation existed. Rather, a reasonable reading of the order 

indicates that the trial court simply found Miller had failed to establish that all 

of the insurance proceeds were used to replace the mobile home. Indeed, 

Miller’s evidence in this regard was weak and contradicted by the Arnolds. 

Read in context, these findings are not clearly erroneous.

[18] Next, Miller makes a brief argument that the trial court erred when it imposed a 

duty on him to pay the utility bills, which remained in his name. He claims, 

“[n]othing in the contract obliged Miller to pay the Arnolds’ utility bills when 

they were shut off due to the Arnolds’ non-payment.” Appellant’s Brief at 12. 

We, however, do not read the order as requiring Miller to pay the utility bills. 

The evidence established that Miller not only directed the utility companies to 

shut off the utilities, despite the Arnolds’ payment agreement with the 

companies, but he also put a hold on the accounts so that the Arnolds could not 

make payments to the utility companies and have the utilities turned back on. 

It was the latter directive that caused the damages in question. Miller has failed 

to establish error in this regard.

[19] With similar brevity, Miller also contends that the trial court erred by failing to 

find the Arnolds in default and failing to accelerate the contract balance. In this 

regard, Miller asserts that the Arnolds were not paying the taxes and insurance 

as required and were behind on their utility bills. We find this to be a request 
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for us to reweigh the evidence, which we will not do on appeal. See Oil Supple 

Co., Inc. v. Hires Parts Serv., Inc., 726 N.E.2d 246, 248 (Ind. 2000).

II. Treble Damages

[20] The Land Contract contained provisions requiring the Arnolds to maintain 

property insurance and pay real estate taxes. In the event they did not do so, 

the contract provided that Miller “may pay such taxes or assessments or obtain 

and maintain such insurance and add costs thereof to the Contract Balance.” 

Appellant’s Appendix at 30. Miller exercised this option with respect to taxes 

throughout the contract and with respect to insurance after the fire. He charged 

the Arnolds $50 per month for insurance, which was more than the actual cost. 

For the years 2011 through 2013, Miller substantially overbilled the Arnolds for 

property taxes, collecting more than double the total amount due.

[21] After detailing the facts related to the overcharges, the trial court entered the 

following finding: “[Miller] knowingly and willingly made false or misleading 

written statements with the intent to obtain money in excess of the taxes and 

insurance actually billed.”5 Id. at 16. As a result, the court concluded that the 

Arnolds were entitled to treble damages, as well as attorney fees, pursuant to 

Ind. Code § 34-24-3-1. The court awarded the Arnolds $6,013.17, “consisting 

 

5 On appeal, Miller does not dispute this specific finding.
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of $5,263.17, representing three times the overcharge for taxes and insurance, 

and reasonable costs and attorney fees of $750.00”. Id. at 19.

[22] On appeal, Miller argues that I.C. § 34-24-3-1 “was never intended to 

criminalize contractual disputes.” Appellant’s Brief at 16. He then provides case 

law addressing actions for conversion, which establishes that money may be the 

subject of an action for conversion only if it is capable of being identified as a 

special chattel (i.e., a determinate sum with which the defendant was entrusted 

to apply to a certain purpose). See Bowden v. Agnew, 2 N.E.3d 743, 750-51 (Ind. 

Ct. App. 2014). 

[23] Miller’s argument misses the mark because the trial court did not award treble 

damages based on a finding of conversion.6 Rather, though not specifically 

labeled as such, the court determined that Miller committed deception by

“knowingly and willingly ma[king] false or misleading written statements with 

the intent to obtain money in excess of the taxes and insurance actually billed.” 

Appellant’s Appendix at 16. This finding tracks the language of Ind. Code § 35-

43-5-3(a)(2), which defines deception as, among other things, “knowingly or 

intentionally making a false or misleading written statement with intent to 

obtain property”. Deception, in turn, is one of the property offenses for which 

an individual who suffers pecuniary loss may bring a civil action for treble 

damages and fees under I.C. § 34-24-3-1. Miller does not address the trial 

 

6 Conversion is statutorily defined as “knowingly or intentionally exert[ing] unauthorized control over 

property of another person”. Ind. Code § 35-43-4-3(a).
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court’s finding of deception. Accordingly, he has failed to establish error in 

regard to the treble damages award.7

III. Motion to Correct Error

[24] Finally, Miller contends that the trial court abused its discretion when it denied 

his motion to correct error “to which various affidavits and accountings were 

attached.” Appellant’s Brief at 20. With this new evidence, Miller sought to 

account for the insurance proceeds and establish that the charges for taxes and 

insurance were not excessive. He acknowledges that the evidence submitted 

with his motion was not newly discovered but argues that “given the unfair 

surprise occasioned by the trial court’s rewriting of the contract,” the 

evidentiary submissions should be permitted and a new trial ordered. Id. at 22.

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

motion to correct error for an abuse of discretion. Speedway SuperAmerica, LLC 

v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). T.R. 59(A)(1) permits a party to 

file such a motion to address “[n]ewly discovered material evidence ... which, 

with reasonable diligence, could not have been discovered and produced at 

trial”. Observing Indiana courts’ concern for finality of judicial resolutions, our 

Supreme Court has made clear:

 

7 Miller expresses surprise that the trial court treated the overcharges as a criminal matter and awarded treble 

damages. We observe, however, that the Arnolds plainly filed a counterclaim in this respect.
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new evidence requires a new trial only when the party seeking 

relief demonstrates:

“(1) the evidence has been discovered since the trial; (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 upon a retrial of the case; and (9) it will 

probably produce a different result at retrial.”

Speedway SuperAmerica, LLC, 885 N.E.2d at 1271 (quoting Carter v. State, 738 

N.E.2d 665, 671 (Ind. 2000)).

[26] Miller acknowledges that his motion was not based on evidence discovered 

after the trial. Rather, the evidence submitted with the motion was clearly 

available at the time of trial. Miller’s attempt to attack the trial court’s 

judgment by providing additional evidence that he neglected to present at trial 

was improper. The trial court properly struck this evidence and denied the 

motion to correct error.8

[27] Judgment affirmed.

 

8

In his reply brief, Miller raises another argument regarding the denial of his motion to correct error. He 

claims, “[a]ccepting the findings of the court below at face value, Miller ought to be entitled to a deficiency 

judgment of $30,549.72”. Appellant’s Reply Brief at 13. He asserts that the trial court’s judgment failed to 

dispose of this matter and left Miller’s right to claim offset unclear. Although not persuaded by this 

argument, we find the issue waived because it was asserted for the first time in Miller’s reply brief. See 

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“grounds for error may only be 

framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived”).
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[28] Riley, J., and Brown, J., concur.