author: BAKER, Judge. BAILEY, Judge,

text:
    Douglas W. FANCIL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A01-1107-CR-339.
    Court of Appeals of Indiana.
    April 5, 2012.

      Marielena Duerring, Duerring Law Offices, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the defendant admitted to manufacturing methamphetamine (meth) as he led police officers on a tour of the manufacturing operation that he maintained at his residence. The police were unable to recover any amount of meth from the defendant’s residence; but because of the volume of manufacturing materials and empty pseudoephedrine packets found at the residence and defendant’s recent history of purchasing pseudoephed-rine, the State charged defendant with dealing in three or more grams of meth, enough to establish a class A felony.

To prove that the defendant manufactured the pseudoephedrine into three or more grams of meth, the State called a detective experienced in meth manufacturing to testify regarding the conversion ratio of pseudoephedrine to meth. The detective testified that “you, could” use fifteen grams of pseudoephedrine to manufacture five grams of meth. Tr. p. 282. Following our opinion in Halferty v. State, we must conclude that this testimony is insufficient to prove beyond a reasonable doubt that defendant manufactured three or more grams of meth. 930 N.E.2d 1149, 1153 (Ind.Ct.App.2010), trans. denied.

Appellant-defendant Douglas W. Fancil appeals his conviction following a jury trial for class A felony Dealing in Methamphetamine . Specifically, he contends that the trial court erred when it admitted his confession and a police officer’s opinion testimony as to the amount of meth that could be manufactured from a specified amount of pseudoephedrine. Had that evidence been properly excluded, Fancil argues that the State would have failed to present sufficient evidence that he manufactured meth or that he manufactured three or more grams of meth — the amount necessary to support a class A felony. Fancil further argues that the trial court erred when it refused his proposed jury instruction on possession of reagents or precursors with intent to manufacture meth as a lesser-included offense of dealing in meth and that his conviction violates double jeopardy principles. Finding that the evidence was insufficient to support the conclusion that Fancil manufactured three or more grams of meth but finding no other error, we affirm in part, reverse in part, and remand with instructions to enter a conviction for class B felony dealing in meth and sentence accordingly.

FACTS

On March 22 and 24, 2009, Fancil purchased a total of 4.8 grams of pseu-doephedrine from CVS and Kroger pharmacies in Warsaw. On April 1, 6, 9, and 25, 2009, Fancil purchased a total of 10.08 grams of pseudoephedrine from a Wal-mart pharmacy in Warsaw. For the four purchases made in April, the State charged Fancil with four misdemeanor counts of purchasing drugs containing more than three grams of pseudoephed-rine in one week. Fancil had previously been charged with burglary and dealing in meth in an unrelated case; and pursuant to a plea agreement in which Fancil pleaded guilty to those charges, the State agreed to dismiss the four charges for the April purchases.

In May 2009, the Indiana State Police (ISP) began conducting surveillance of Fancil’s residence in New Paris after receiving information that Fancil was manufacturing meth. On May 7, 2009, an officer executed a traffic stop on a vehicle seen leaving Fancil’s residence and discovered an active meth lab inside the vehicle.

On May 19, 2009, Fancil agreed to speak with police officers about drag activity. ISP Sergeant Chad Larsh met Fancil at his residence, where Fancil consented both verbally and in writing to a search of his property and made a recorded statement. Fancil then led Sergeant Larsh and two other police officers through a detached garage and his residence, directing their attention to materials used in the meth manufacturing process. He also admitted that he had been manufacturing meth for eight months and that approximately nine other individuals had manufactured meth with him.

Near the detached garage, the police officers observed a burn barrel in which they found multiple punctured aerosol-style cans and a bag containing a punctured starter fluid can and stripped lithium batteries. Inside the residence, the police collected drug paraphernalia, including eighteen used syringes and “foi-lies” with burnt residue. Tr. p. 94. In the bathroom, Fancil directed Sergeant Larsh to two “spent or a used bottle with a dried chemical in the bottom of it which was the result of a meth cook” and told him of a third bottle on the stairwell that was also found to contain residue. Id. at 57-58, 94, 227, 282, 243-44. Fancil told Sgt. Larsh that there was additional “meth trash” in the basement. Id. at 57-58. Upon completing a sweep of the house, the police collected stripped lithium batteries, punctured starter fluid canisters, several hydrogen chloride (HCL) generators, a coffee grinder containing ground pseudoephedrine, Drano bottles, emptied cold packs, Coleman fuel cans, salt containers, Ziploc bags with residue, coffee filters, and emptied blister packs that once contained fifteen total grams of pseudoephedrine.

In his recorded statement, Fancil admitted that he had manufactured meth as recently as three weeks prior to making his statement. He described the bottle in the bathroom that he directed the police officers to as an “un-active bottle” that once contained the ingredients necessary to make meth but was “dried up, you know, because it had not been, its been like all used up.” Tr. p. 58. Fancil then explained in detail the exact process and quantities of materials he uses to make meth. He further explained that by using a combination of both the “green kind” and “white kind” of Drano “... a lot of times it seems to work better.” Tr. p. 59.

On September 8, 2009, the State charged Fancil with dealing in meth, a class A felony. The information specifically charged Fancil with manufacturing three or more grams of pure or adulterated meth on or about May 19, 2009.

At trial, the State introduced into evidence Fancil’s recorded statement and pictures of the “meth trash” at Fancil’s residence. The State called ISP Detective Jason Faulstich as a skilled witness to testify about the process for making meth from pseudophedrine and the amount the process yields. As a member of the ISP’s clandestine lab team, Detective Faulstich processed 450 clandestine labs and interviewed numerous “cooks” regarding their processes for manufacturing meth. He has been trained to understand the manufacturing process for meth. Specifically, he has manufactured meth twice in lab settings and once outdoors utilizing stripped lithium batteries and other materials similar to “what a person would use in the street.’' Tr. p. 299. Detective Faulstich testified at trial that, in lab settings, he achieved a pseudophedrine to meth conversion ratio of about ninety percent.

With regard to Fancil’s capabilities, Detective Faulstich testified that, in his opinion, Fancil’s lab was one of the larger scale of what he had seen in his training and experience. When asked about his opinion as to the skill level or sophistication of the lab found at Fancil’s home, Detective Faulstich answered that “this would appear, appear to me this was not a first-time run. Meaning that this was definitely a more advanced cook. I would not say totally advanced but definitely a lot more advanced that just your normal cook.” Tr. p. 301. Over Fancil’s objection, the following exchange then occurred between the prosecutor and Detective Faulstich,

Q. Do you recall that I gave you a coffee filter, correct?
A. Yes.
Q. And I gave you five individual one-gram packet? of Splenda?
A. Correct.
Q. You opened up each of those five and poured it into the coffee filter, is that correct?
A. Correct.
Q. As the evidence indicated from your testimony, you’ve processed some 450 labs?
A. That is correct.
Q. You had extensive education and training with regard to methamphetamine and ;,he manufacture the [sic] methamphetamine, correct?
A. That is correct.
Q. And you have personally made methamphetimine in the past, is that correct?
A. Correct.
Q. In this particular case, there were blister packs of pseudophedrine to the tune- of roughly 15 grams, is that correct?
A. That is correct.
Q. If you were to use roughly 15 grams of pseudoephedrine and combine it with the other ingredients necessary to make meth, do you think you would be able to make the same or more meth than is in the coffee filter?
A. Yes, you could.

Tr. p. 281-82 (emphasis added).

At the conclusion of the trial, the trial court instructed the jury on class A felony dealing in meth and class B felony dealing in meth as a lesser-included offense. The trial court refused to instruct the jury on the lesser-included offense of possession of reagents or precursors with intent to manufacture methamphetamine. The jury then found Fancil guilty as charged. On July 14, 2011, the trial court sentenced Fancil to forty-eight years of incarceration, with four years suspended to probation. Fancil now appeals.

DECISION AND DISCUSSION

I. Class A Felony Dealing in Methamphetamine

Fancil argues that the trial court erred when it permitted Detective Faulstich to testify as a skilled witness regarding the amount of meth that could have been produced from materials found at Fancil’s residence. Without that evidence, Fancil argues that the evidence is insufficient to support his conviction for class A dealing in meth.

The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002). We will reverse a trial court’s decision on the admissibility of evi-denee only upon a showing of an abuse of that discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

Indiana Code section 35-48^1-1.1 provides that a person is guilty class A felony dealing in meth if he knowingly or intentionally manufactures three or more grams of meth. The police recovered empty blister packs that once contained fifteen grams of pseudoephedrine from Fancil’s residence, and the State presented evidence of pharmacy logs indicating that Fancil had purchased fifteen grams of pseudophedrine within the two months before his arrest. State’s Ex. 202-05. But, it appears from the record that the police were unable to recover meth in any measurable amount at Fancil’s residence; accordingly, the State introduced Detective Faulstich’s meth yield testimony to prove that Fancil manufactured three or more grams of meth.

Fancil contends that the trial court erred when, over his objection, it admitted Detective Faulstich’s opinion testimony regarding the amount of meth that could be manufactured based upon the empty pseudoephedrine packets. Specifically, Fancil argues that Detective Faulstich’s testimony was improper because it requires scientific knowledge and Faulstich was only admitted as a skilled witness. The State contends that Detective Fauls-tich testified as a skilled witness, and as such, the trial court did not abuse its discretion in admitting the testimony. Assuming without deciding whether Detee-tive Faulstich’s testimony was admissible, we proceed to address the issue of whether the evidence is sufficient to prove that Fancil manufactured three or more grams of meth, and conclude that it is not.

When reviewing the sufficiency of the evidence, we consider only the evidence that supports the verdict, and draw all reasonable inferences therefrom. Warren v. State, 725 N.E.2d 828, 834 (Ind.2000). We neither reweigh the evidence nor judge the credibility of witnesses. Id. We will uphold a conviction if there is substantial evidence of probative value from which a jury could have found the defendant guilty beyond a reasonable doubt. Id.

This case is similar to Halferty v. State, 930 N.E.2d 1149 (Ind.Ct.App.2010) tram, denied. In Halferty, the State charged Halferty with class A dealing in meth. Id. at 1150. The police recovered .40 grams of meth and 4.61 grams of pseudophedrine from the scene. Id. In order to prove that Halferty had manufactured the remaining 2.6 grams to establish a class A felony, the State called then Trooper Faulstich to testify regarding the conversion ratio of pseu-doephedrine to meth. When Halferty objected pursuant to Indiana Evidence Rule 702, arguing that the State was eliciting expert witness testimony without laying a proper scientific foundation, the State responded that “it was not asking Trooper Faulstich about a specific cook, but instead ‘talking about conversion in general.’ ” Id. at 1153 (quoting Tr. p. 275). Trooper Faulstich testified that “‘in general,’ the conversion ratio between ephedrine/pseu-doephedrine to methamphetamine was ‘usually right around 70, 80 percent’ and that one gram of ephedrine/pseudoephed-rine would produce ‘about’ .70 or .80 grams of methampthetimine.” Id. (quoting Tr. p. 275, 276) (emphasis in original). Trooper Faulstich then testified that the ratio can change depending on the process and person who is cooking, admitting that the ratio can “‘fall below 50 percent.’” Id. (quoting Tr. p. 826).

At the conclusion of the trial, the jury convicted Halferty as charged. Halferty appealed, and a panel this Court reversed his class A felony conviction for dealing in meth, concluding that the evidence was insufficient to prove that Halferty manufactured three or more grams of meth. Id. The panel observed that Trooper Faulstich “testified that the conversion ratio was ‘in general,’ ‘usually,’ or ‘about’ seventy to eight percent,” but also testified that the conversion ratio could be below fifty percent depending on the cook. Id. at 1153. Using the fifty percent conversion ratio, the panel found that the amount of pseudophedrine found at the scene would not have produce 2.6 grams of meth. In addition, the panel held that the use of “in general,” “usually,” or “about” does not constitute proof beyond a reasonable doubt that Halferty manufactured the 2.6 grams of meth and reversed Halferty’s conviction. Id. at 1154.

Here, we similarly conclude that Detective Faulstich’s testimony does not constitute proof beyond a reasonable doubt that Fancil manufactured three or more grams of meth on or about May 19, 2009 as the State had charged. Appellant’s App. p. 69. As discussed above, the testimony the State introduced to establish that Fancil manufactured three grams or more of meth is:

Q. If you were to use roughly 15 grams of pseudoephedrine and combine it with the other ingredients necessary to make meth, do you think you would be able to make the same or more meth than is in the coffee filter?
A. Yes, you could.

Tr. p. 282 (emphasis added). Both the question and answer refer to a general meth yield ratio of the sort deemed insufficient in Halferty, 930 N.E.2d at 1154. Likewise, we find that the use of the term “could” be a testifying police officer is, in and of itself, not proof beyond a reasonable doubt that Fancil manufactured three or more grams of meth. Id. Thus, we conclude that the evidence is insufficient to support his conviction for class A dealing in meth.

Notwithstanding this determination, the State argues that this case is distinguishable from Halferty because the State presented evidence that Fancil has the skill and experience to produce an efficient conversion yield. Appellee’s Br. p. 14. The State contends that Fancil only had to achieve a conversion ratio of twenty percent, not the fifty percent considered in Halferty, 930 N.E.2d at 1154, in order to produce three grams of meth from fifteen grams of pseudophedrine. We find these arguments unavailing. Although the State did present evidence that Fancil had been manufacturing meth for a number of months and possessed a degree of skill, tr. p. 300-301, Detective Faulstich’s testimony did not address a specific conversion ratio for Fancil in light of his capability and the materials present at his residence. Moreover, although Fancil only needed to be able to convert at a rate of twenty percent to produce the three grams, the State cannot rely on the low conversion ratio from Halferty that was not in evidence in this case.

That said, we note that the trial court instructed the jury, “[i]f the State failed to prove the amount of methamphetamine involved weighed three (3) grams or more, you can consider whether the State proved Dealing in Methamphetamine, a Class B Felony.” Appellant’s App. p. 17. Indiana Code section 85-48-4-1.1 provides that a person who knowingly or intentionally manufactures meth, pure or unadulterated, commits class B felony dealing in meth.

Here, Fancil confessed to manufacturing meth and the police officers recovered from Fancil’s residence materials that had been used to manufacture meth. Tr. p. 57-59.; State’s Ex. 17-28. The police officers testified at trial that they found what one described as “meth trash” from materials used in the production of meth at Fancil’s residence Tr. p. 124. This “meth trash” included empty pseudoephedrine blister packs, stripped lithium batteries, punctured starter fluid canisters, empty Coleman fuel containers, cold packs emptied of ammonium nitrate, Drano bottles, HCL generators, and a coffee grinder containing ground pseudoephedrine. Id. at 232-36, 239-41, 252-53; State’s Ex. 18-24, 43-44, 105. The police officers recovered several reactionary bottles containing dried white residue with tubes attached at the top. Tr. 94, 227, 232, 243-14; State’s Ex. 19, 31. The officers also found burnt “foilies” with residue, baggies with corners cut off, and used syringes, indicating the process had produced a finished, usable product. Tr. 94, 237-38, 248-49, 251; State’s Ex. 26, 35, 38, 106. The State presented evidence that Fancil had purchased pseudophedrine within two months before his arrest. State’s Ex. 202-05. Detective Faulstich testified that, in his opinion, Fancil was operating a meth lab “more on the larger scale.” Id. at 301. In light of Fancil’s confession to police the evidence found at Fancil’s residence, and Detective Faulstich’s testimony, the evidence is sufficient to prove that Fancil committed class B felony dealing in meth.

We note that Fancil argues that the trial court committed reversible error when it admitted his confession into evidence to establish the commission of the charged offense because the State did not provide sufficient independent evidence of the corpus delicti. The corpus delicti rule states that a confession alone is insufficient to prove that a crime has been committed and that there must be independent evidence that merely “ ‘providefs] an inference that a crime was committed.’ ” Workman v. State, 716 N.E.2d 445, 447-48 (quoting Stevens v. State, 691 N.E.2d 412, 424-425 (Ind.1998)). As discussed above, there is ample evidence independent of Fancil’s confession that he manufactured meth, and as a result, his corpus delicti argument fails.

II. Jury Instruction

Fancil contends that the trial court erred when it refused to tender his proposed jury instruction on the lesser-included of offense of possession of reagents or precursors with the intent to manufacture meth. When deciding whether to instruct the jury on a lesser included offense, a trial court must first “compare the statute defining the crime charged with the statute defining the lesser-included offense” to determine whether the claimed lesser-included offense is inherently included in the charged offense, either because the lesser offense “may be established ‘by proof of the same material elements or less than all the material elements’ defining the crime charged” or because the only distinction “is that a lesser culpability is required to establish the commission of the lesser offense.” Id. at 566-67.

Where the claimed lesser-included offense is neither inherently nor factually included in the charged offense, the trial court should not give the proffered instruction to the jury. Id. at 567. If, however, the claimed lesser-ineluded offense is either inherently or factually included in the charged offense, the trial court

must look at the evidence presented in the case by both parties. If there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense. If the evidence does not so support the giving of a requested instruction on an inherently or factually included lesser offense, then a trial court should not give the .requested instruction.

Id. (citations omitted). When the court rejects tendered instructions on lesser-included offenses on their merits, but the record provides neither a finding that there is no serious evidentiary dispute nor a specific claim from the defendant as to the nature of that dispute, the standard-of review is an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1020 (Ind.1998).

We have found that possession of precursors with inlent to manufacture meth is a lesser-ineluded offense of manufacturing meth. Scott v. State, 803 N.E.2d 1231, 1238 (Ind.Ct.App.2004); Iddings v. State, 772 N.E.2d 1006, 1016 (Ind.Ct.App.2002); Bush, 772 N.E.2d at 1024. Therefore, the only issue here is whether there was a serious evidentiary dispute. The distinguishing element between these two offenses — and where there must be a serious evidentiary dispute — is “one may be guilty of possessing chemical precursors with intent to manufacture without actually beginning the manufacturing process, whereas the manufacturing process must, at the very least, have been started by a defendant in order to be found guilty of manufacturing methamphetamine.” Bush v. State, 772 N.E.2d. 1020, 1024 (Ind.App.2002).

Here, there was' no dispute at Fancil’s trial that he manufactured meth. In his recorded statement, Fancil admitted that he had manufactured meth as recently as three weeks before giving his statement. Tr. p. 58. Accordingly, Fancil’s admission nullified any evidentiary dispute between the alleged crime of dealing in meth and Fancil’s proffered lesser-included offense of possession of reagents or precursors with the intent to manufacture meth. Put another way, a jury could not have concluded that the lesser offense was committed but not the greater. Thus, the trial court properly exercised its discretion in denying Fancil’s proffered instruction.

III. Double Jeopardy

Fancil contends that his conviction violates the principle's of double jeopardy under the Indiana Constitution because “the State was permitted to use the same evidence to convict [Fancil] of manufacturing meth that was the subject of charges that were dismissed pursuant to a plea agreement.” Appellant’s Br. p. 15. Specifically, Fancil argues that, because the prior charges for purchases of meth made in April 2006 were dismissed pursuant to a plea agreement, the State' was foreclosed from using this evidence and its use violates the constitutional prohibition against double jeopardy under the actual evidence test. See Richardson v. State, 717 N.E.2d 32, 53 (Ind.1999). Fancil does not contend the language of the plea agreement prevents the State from using the evidence of the purchases in a subsequent prosecution for charges other than purchasing drugs containing more than three grams of pseu-doephedrine in one week.

“Before a defendant can be subjected to double jeopardy, he must be subjected to jeopardy.” Emmons v. State, 847 N.E.2d 1035, 1037 (Ind.Ct.App.2006). The State prohibitions against double jeopardy protect against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. Jaramillo v. State, 823 N.E.2d 1187, 1188 (Ind.2005). (emphasis added). Under the actual evidence test, two challenged offenses constitute the “same offense” in a claim of double jeopardy if a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Richardson, 717 N.E.2d at 53.

Here, the charges for purchasing drugs containing more than three grams of pseu-doephedrine in one week based upon the April 2006 purchases were dismissed pursuant to a plea agreement. Tr. p. 273-74; Defendant’s Ex. C. Thus, Fancil was never prosecuted or punished for those purchases or the use of those purchases. Therefore, the evidence presented in support of his conviction for dealing in meth does not violate double jeopardy concerns.

CONCLUSION

We conclude that the State failed to present sufficient evidence that Fancil manufactured more than three grams of meth. Therefore, we reverse Fancil’s conviction for class A felony dealing in meth and remand with instructions to enter a conviction for class B felony dealing in meth. We also instruct the trial court to resentence Fancil in accordance with the changed conviction.

The trial court’s judgment is affirmed in part, reversed in part and remanded with instructions.

DARDEN, J., concurs.

BAILEY, J., dissents with opinion.

BAILEY, Judge,

dissenting.

The majority concludes that the State presented insufficient evidence from which a reasonable finder of fact could conclude that Fancil manufactured three or more grams of methamphetamine. Because I cannot agree that the evidence was insufficient to support an inference that Fancil had manufactured an amount of methamphetamine sufficient to sustain the conviction for Dealing in Methamphetamine, as a Class A felony, I respectfully dissent.

Our standard of review when a defendant challenges the sufficiency of the evidence is well-settled. We consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess the credibility of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). “The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind.Ct.App.2001)).

The majority’s reasoning relies upon its interpretation of Halferty v. State, 930 N.E.2d 1149 (Ind.Ct.App.2010), trans. denied. In Halferty, the State introduced testimony that the conversion ratio of one gram of pseudoephedrine to .7 or .8 grams of methamphetamine was true “in general,” but that the ratio could drop below fifty percent. Id. at 1153. Because in that situation the total yield of methamphetamine from precursor pseudoephedrine would bring the total amount of methamphetamine Halferty would have manufactured below the three grams required for a Class A felony conviction, we concluded the evidence was insufficient to sustain Halferty’s Class A conviction. Id. at 1154.

The situation that faced us in Halferty does not present itself here. In that case, the testimony established a range of possible yields of methamphetamine both above and below the three grams total required to convict Halferty of a Class A felony. Here, the testimony is that the total amount of precursor pseudoephedrine possessed by Fancil came to around fifteen grams. The State elicited Detective Faulstich’s testimony that the fifteen grams of pseudoephedrine could produce five or more grams of methamphetamine.

The majority concludes that “the use of the term ‘could’ ... is, in and of itself, not proof beyond a reasonable doubt that Fan-cil manufactured three or more grams of meth.” Op. at 707. Yet while “the State cannot rely on the low conversion ratio from Halferty ” because that ratio was not in evidence, Op. at 707, the evidence that was put before the jury indicated that, given the amount of pseudoephedrine and other supplies recovered irom the home, Fancil could have produced at least five grams of methamphetamine as an experienced lab operator.

This evidence, I think, permits a reasonable inference that Fancil actually did produce five or more grams of methamphetamine. Our standard of review requires that we reverse a conviction only when “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Drane, 867 N.E.2d at 146 (emphasis added). That condition was not met here, and thus I think a reasonable jury could determine beyond a reasonable doubt that Fancil was guilty of Class A Dealing in Methamphetamine. I would therefore affirm his conviction of the Class A felony.

Thus, I respectfully dissent.

      . Ind.Code § 35-48-4-1.1(a)(1)(A), (b)(1).

      . Sergeant Larsh testified that a "foily” is a strip of aluminum foil that is used to smoke or ingest meth. Tr. p. 94.

      . Indiana Evidence Rule 702 provides:
      (a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testily thereto in the form of an opinion or otherwise.
      (b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.


source: Caselaw Access Project

author: DARDEN, Judge.

license: Public Domain

text:
    WHISKEY BARREL PLANTERS CO., INC., n/k/a Diggs Enterprises, Inc., an Indiana Corporation, Robinson Family Enterprises, LLC, an Indiana Limited Liability Company, Ralph Richard Robinson and Ann Robinson, Appellants, v. AMERICAN GARDENWORKS, INC., an Indiana Corporation, and Millennium Real Estate Investment, LLC, Appellees.
    No. 04A03-1011-PL-582.
    Court of Appeals of Indiana.
    April 16, 2012.

      Stephen R. Pennell, Stuart & Branigin, LLP, Lafayette, IN, Attorney for Appellants.
    Jerome L. Withered, Withered Burns & Persin, LLP, Lafayette, IN, Attorney for Appellees.

      . The record shows that Ralph and Ann recovered some items of personal property from AGW on September 25, 2008.

   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Whiskey Barrel Planters Co., n/k/a Diggs Enterprises, Inc. (“Whiskey Barrel Planters”); Robinson Family Enterprises, LLC (“RFE”) (collectively, “Whiskey Barrel”); Ralph Richard Robinson (“Ralph”); and Ann Robinson (“Ann”) appeal the trial court’s determination in favor of American Garden Works, Inc. (“American Garden Works”) and Millenium Real Estate Investment, LLC (“MRE”) (collectively, AGW”).

We reverse and remand.

ISSUES

1. Whether the trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on Count III of AGW’s second amended complaint.

2. Whether the trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on Count VII of AGW’s second amended complaint.

3. Whether the trial court erred in denying Whiskey Barrel’s counterclaims.

4. Whether the trial court erred in determining the amount of attorney fees owed to AGW.

FACTS

American GardenWorks is an Indiana corporation and MRE is an Indiana unlimited liability company, each with its principal place of business in Attica, Indiana. Both entities are wholly owned by Milleni-um Supply Company, which is owned by Gene McGowen (“McGowen”) and Charles Neff.

Whiskey Barrel Planters was a family-owned Indiana business corporation and RFE is a limited liability corporation, each with its principal place of business in Boswell, Indiana. Ralph and Ann are the sole shareholders of Whiskey Barrel Planters and the sole members of RFE.

Until June 2008, Whiskey Barrel Planters manufactured and shipped planters and garden accessories from its Boswell, Indiana facility leased from RFE. Whiskey Barrel Planters also leased real estate located in Foresman, Indiana, from RFE. Ralph and Ann owned residential property located in Boswell, Indiana.

Whiskey Barrel had loans from Key Bank in the amount of approximately $2 million. The loans were secured by mortgages on Whiskey Barrel’s business real estate and Ralph and Ann’s residential property. Ralph and Ann had personally guaranteed the loans, and by the Spring of 2008, the bank began putting pressure on Ralph and Ann to secure other financing.

Because he was unable to secure additional financing, Ralph began looking for a buyer, and McGowen and Neff, acting as AGW’s agents, agreed to buy Whiskey Barrel for $527,800. Although the bank was involved in the sale by putting time limitations thereon, the parties dealt at arm’s length as sophisticated entities that had been in business for years. Indeed, prior to the sale, McGowen did a walkth-rough inspection, and there is no evidence that he didn’t see all of the property during the walkthrough. Both parties had the benefit of attorneys and accountants, and AGW’s attorney drafted the “Asset Purchase Agreement (the “Agreement”). In essence, both parties leapt at the perceived benefits of the sale, with the Robinsons looking at getting rid of debt and AGW acquiring assets at a discounted price. The bank approved the agreement and agreed to discharge Ralph’s and Ann’s personal guarantees and forgive any deficiency on the loan upon payment of the purchase amount to the bank.

The Agreement detailing the terms of AGW’s acquisition of the specific assets of Whiskey Barrel was drafted and executed on June 30, 2008 by AGW’s attorney, and it provided that “AGW assume[s] no debts, liabilities, or obligations incurred by [Whiskey Barrel] ... [and Whiskey Barrel] shall indemnify and hold [AGW] harmless thereon.” (App.420). Furthermore, Recital E of the Agreement provided that “[Whiskey Barrel] desirefs] to sell and AGW desirefs] to buy substantially all of the machinery, equipment, inventory, goodwill, assets, real estate, paraphernalia and trade name of the Business, Business Real Estate, and Residence.” (App.418).

Section 1, entitled “Purchase of Assets,” defined the types of assets purchased, and provided:

[Whiskey Barrel] agrees to sell, and AGW agree[s] to purchase, the following assets of [Whiskey Barrel]....:
A. Business Real Estate, whose legal description is set forth in attached Exhibit A;
B. Residence, whose legal description is set forth in attached Exhibit B;
C. Accounts Receivable of Whiskey Barrel;
D. Cash on hand/bank account(s), and any prepaid insurance, along with the right to any refunds or credits from any such prepaid insurance of Whiskey Barrel;
E. Finished inventory of Whiskey Barrel;
F. Raw materials inventory of Whiskey Barrel;
G. The machinery, equipment, including any and all vehicles owned by Whiskey Barrel, fixtures, tools and furniture located at the locations of the Business in Boswell, Indiana and Foresman, Indiana, as set forth on the attached Exhibit C.
H. Whiskey Barrel’s rights to use the trade name Whiskey Barrel Planters, all customer lists, trade secrets, goodwill, technical product information, system documentation and other general administrative information required to operate and support the Business.

(App.418-19).

Section 15 of the Agreement, entitled “Miscellaneous Provisions,” included an integration clause (Paragraph 15(C), entitled “Entire Agreement”) drafted by AGW. The integration clause provided:

This Agreement contains the entire understanding between the parties and supersedes any prior understanding and agreements among them respecting the subject matter of this Agreement. No party shall be liable or bound to the other in any manner whatsoever by any warranties, representations or guarantees (whether expressed, implied or otherwise) except as specifically set forth herein.

(App.425). After closing on June 30, 2008, AGW hired Ralph to continue the operation of the former Whiskey Barrel.

On November 12, 2008, AGW filed a complaint against Whiskey Barrel, alleging eight counts. The complaint was amended on January 9, 2009, with the same counts. On April 29, 2009, AGW filed a second amended complaint, alleging thirteen counts. At issue in this appeal is Count III, wherein AGW alleges that it was entitled to collect as assets the loans by Whiskey Barrel to Ralph and Ann in the amount of $327,123.00 that were not included as accounts receivable but were shown on the balance sheets and tax returns of Whiskey Barrel as “Other Current Assets.” (App.184). Also at issue is Count VII, wherein AGW alleges that it was entitled to collect as assets 2008 Purdue football season tickets that were purchased by Ralph with Whiskey Barrel funds.

AGW filed fraud counts which are not the subject of this appeal but which had a bearing on the trial court’s decision regarding the aforementioned Counts III and VII. AGW filed Count VIII, wherein it alleged fraud concerning certain inventory and related items recorded on Whiskey Barrel’s balance sheets. AGW also filed Count X, wherein it alleged fraud in the manner in which "Whiskey Barrel described certain environmental issues. AGW further filed Count XII, wherein it alleged fraud because Whiskey Barrel omitted from the list of assets attached to the Agreement — in the form of property, equipment, and vehicles listed in Exhibit C — some of the assets that Whiskey Barrel had allegedly agreed to sell to AGW.

On January 22, 2009, "Whiskey Barrel filed four counterclaims. At issue in this appeal is Counterclaim Count III, wherein Whiskey Barrel alleges that AGW converted personal property belonging to Ralph and Ann by refusing to allow them on the business property to recover their personal property. Also at issue is Counterclaim Count IV, wherein Whiskey Barrel alleges that it is entitled to replevin of the converted personal property.

On June 10, 2009, Whiskey Barrel filed a motion for partial summary judgment as to, among other things, Counts III and VII. In the motion, "Whiskey Barrel alleged that the second amended complaint failed as a matter of law under the parol evidence rule because the Agreement did not provide for the sale of the shareholder loans to AGW. With reference to the Count III shareholder loans, the motion stated that the complaint “fails, as a matter of law, because ‘loans to shareholders’ was not an asset [Whiskey Barrel] sold to [AGW] pursuant to the [Agreement].” (App.202). The accompanying brief stated that shareholder loans “were not included as an asset by Whiskey Barrel to [AGW], as demonstrated by the [Agreement] and the balance sheet [AGW] attached to their Second Amended Complaint.” (App.224-25). The brief further stated that the evidence proffered by AGW — the balance sheet of Whiskey Barrel attached to [AGW’s] second amended complaint — “refutes any notion that a ‘loan to a shareholder’ is included as part of the ‘Accounts Receivable of Whiskey Barrel’ which [AGW] acquired from [Whiskey Barrel].” (App.225). The brief set forth further arguments that will be addressed below.

The motion for partial summary judgment also alleged that the second amended complaint failed as a matter of law because Section 1 of the Agreement did not provide for the sale of the 2008 Purdue football season tickets. The accompanying brief pointed out th?t the tickets were not denominated as “assets” sold pursuant to the Agreement.

AGW responded to Whiskey Barrel’s motion for partial summary judgment and stated that the term “Accounts Receivable,” as used in the Agreement, was ambiguous, and the term’s meaning could not be determined as a matter of law. Thus, AGW alleged that the court could look outside the four corners of the Agreement to ascertain whether shareholder loans could be included as one of the “Accounts Receivable” that it purchased. AGW also responded that it was impossible to conclude, as a matter of law, that the 2008 Purdue football season tickets were not assets sold by Whiskey Barrel to AGW under the Agreement. In support of its response on both counts, AGW designated McGowen’s affidavit, in which he opined:

It was the intention of both parties in executing the [Agreement] and completing the transaction that [AGW, as purchaser, was] buying all of the assets owned by IWhiskey Barrel], as [seller]. This included the shareholder loan, listed on the May 2008 balance sheet of [Whiskey Barrel], attached to [AGW’s] Second Amended Complaint as Exhibit 3, and the season tickets for Purdue football, which are owned by and were ordered by Whiskey Barrel and were sent to Whiskey Barrel’s Boswell address. After examining the books of [Whiskey Barrel], I confirmed that Whiskey Barrel had purchased the football tickets, and therefore such tickets were an asset of the company as. of June 30, 2008.

(App.262). On January . 21, 2010, the trial court denied Whiskey Barrel’s motion for partial summary judgment.

On May 10-12, 2010, a trial was held on AGW’s second amended complaint and Whiskey Barrel’s counterclaims. At the trial, the trial court admitted evidence pertaining to AGW’s fraud claims as an exception to the parol evidence rule. The trial court issued extensive findings of fact and conclusions of law in which it held for Whiskey Barrel on AGW’s Counts VIII and X fraud claims and for AGW on its Count XII fraud claim.

On the Count III loans to shareholders claims, the trial court held for AGW. The trial court made the following findings in support of its judgment on this count:

222. The Whiskey Barrel balance sheets and tax returns include an entry noted “Loans to Shareholders.”
223.' The balance of the loan to shareholders was $327,123.20.
224. “Accounts Receivable” is not defined by the [Agreement], but a shareholder loan could be deemed an account receivable. In any event, the loan to shareholders was unquestionably an asset of Whiskey Barrel, and AGW acquired all of Whiskey Barrel’s assets in this transaction.
225. The Court finds that “accounts receivable” must be broadly construed to reflect the parties’ understanding, and that' when AGW acquired all the assets of Whiskey Barrel, ’ they acquired the right to collect the shareholder loan from [Ralph and Ann].

(App.46) (citations to exhibits omitted). The trial court’s findings are based, in large part, upon the evidence admitted pursuant to the fraud counts under the fraud exception to the parol evidence rule.

The trial court also held for AGW on its Count VII theft claims involving the 2008 Purdue football season tickets. In so doing, the trial court recognized that the Agreement did not identify the tickets as an asset to be sold. The court found that “the [A]greement of the parties was that all of the assets of Whiskey Barrel were to be sold and that the football tickets were an asset of Whiskey Barrel.” (App.24). (Emphasis added). The trial court’s finding is based upon the evidence admitted pursuant to the fraud claims under the fraud exception to the parol evidence rule.

The trial court held for AGW on Whiskey Barrel’s counterclaims. In so doing, the trial court made the following findings:

229. Counts III and IV of the Counterclaim concerned personal property which [Ralph and Ann] claim is theirs and did not go with the sale to AGW, and which are held in rooms at the Boswell production facility.
230. The Court finds that the parties made a deal for sale of all assets that were located on and inside the Whiskey Barrel facility at Boswell.
231. The Court notes that [Ralph and Ann] did not move any of the claimed items before the June 30, 2008 closing, or during the six weeks that [Ralph] worked for [American GardenWorks] after the closing, or even on September 25, 2008, when [Ralph and Ann] picked up numerous items from AGW’s facility.
232. The Court finds that the items of personal property claimed by the [Ralph and Ann] in their Counterclaim passed to AGW as part of the sale, and that in any event, [Ralph and Ann] have abandoned any claims to such property by failure to take it away before closing, to remove it during the six weeks [Ralph] worked for [American Gardenworks] after the closing, or to take it on September 25, 2008.
233.Judgment should be entered against [Whiskey Barrel] and in favor of [AGW] on [Whiskey Barrel’s] Counterclaims.

(App.47). The trial court entered judgment in favor of AGW in the amount of $409,611.24, a judgment which included a favorable ruling on AGW’s claims for recovery of cash in hand, an insurance refund, a bank account, the 2008 Purdue football season tickets, and the shareholder loans. The trial court also awarded attorney fees and costs to AGW in the amount of $24,454.04.

DECISION

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d 1203, 1206 (Ind.Ct.App.2008), trans. denied. The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials, Inc., 780 N.E.2d 1226, 1228 (Ind.Ct.App.2003). The construction of a written contract is generally a question of law for the court, making summary judgment particularly appropriate in contract disputes. Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 55 (Ind.Ct.App. 2009), trans. denied. A contract will be found ambiguous only if reasonable persons would differ as to the meaning of its terms. Id. at 56. A contract is not ambiguous merely because the parties disagree as to its proper construction. Id.

As a general rule, interpretation of a contract presents a question of law and is reviewed de novo. Trustees of Ind. Univ. v. Cohen, 910 N.E.2d 251, 257 (Ind.Ct.App. 2009). A court should determine the intent of the contracting parties by analyzing the contractual language within the four corners of the document. Id. Clear, plain, and unambiguous terms are conclusive of that intent. Id. The primary goal of contract interpretation is to ascertain and give effect to the intention of the parties as reasonably manifested by the language of the four corners of the agreement. Beazer Homes Ind., LLP v. Carriage Courts Homeowners Assoc., 905 N.E.2d 20, 22-23 (Ind.Ct.App.2009), trans. denied. Neither a trial nor an appellate court should construe clear and unambiguous provisions, and neither court should add provisions not agreed upon by the parties. Id. at 23. The power to interpret contracts does not extend to changing its terms. Knight v. Ind. Ins. Co., 871 N.E.2d 357, 361 (Ind.Ct. App.2007). A court determines the meaning of a contract from examination of all of its provisions, without giving special emphasis to any word, phrase, or paragraph. Simon Property Group v. Michigan Sporting Goods Distribs., Inc., 837 N.E.2d 1058, 1070 (Ind.Ct.App.2005), trans. denied.

If the language of a contract is unambiguous, the court may not look to extrinsic evidence to expand, vary, or explain the instrument. Beazer, 905 N.E.2d at 23. The parol evidence rule precludes a party from presenting evidence of prior or contemporaneous oral agreements or other extrinsic evidence to vary or contradict the terms of a written contract. Sees v. Bank One, Indiana, N.A., 839 N.E.2d 154, 161 (Ind.2005). Furthermore, where a contract contains an integration clause which indicates the contract is a complete, final, and accurate expression of all the parties’ agreements, evidence of a prior or contemporaneous statement or negotiation cannot operate either to add to or contradict the terms of the agreement. Hinkel v. Satarla Distrib. & Packaging, Inc., 920 N.E.2d 766, 769 (Ind.Ct.App.2010). Exceptions to the parol evidence rule apply when there is proof of fraud, mistake, ambiguity, illegality, duress, or undue influence. People’s Bank & Trust Co. v. Price, 714 N.E.2d 712, 717 (Ind.Ct.App.1999), trans. denied. The existence of express terms in a valid written contract precludes the substitution of any implied terms regarding the subject matter covered by the express terms. Id.

1. Loans to Shareholders

Whiskey Barrel contends that the trial court erred in determining that it was not entitled to summary judgment as a matter of law on Count III of the second amended complaint. Whiskey Barrel emphasizes that AGW did not claim that there was fraud involved in the definition of assets under the Agreement. Whiskey Barrel argues that the Agreement unambiguously provides for the sale of specific assets, not for the sale of all assets. It also contends that there is no ambiguity in the meaning of the term “accounts receivable” as that term is used in the Agreement drafted by AGW.

Our review of the pleadings shows that although AGW claimed that Whiskey Barrel fraudulently induced AGW to enter into certain parts of the Agreement, it did not claim that Whiskey Barrel committed fraud with regard to the shareholder loans. Accordingly, we examine the designated evidence to determine whether there is ambiguous language in the Agreement that necessitated the denial of summary judgment on this issue.

As described above, the Agreement provided for the purchase of “substantially all of the machinery, equipment, inventory, goodwill, assets, real estate, paraphernalia and trade name of the Business, Business Real Estate, and Residence.” (App.418) (Emphasis added). The Agreement then listed the eight specific types of assets that were to be sold, a list including “Accounts Receivable of Whiskey Barrel” but not shareholder loans. (App.418-19). Citing Webster’s New College Dictionary, p. 1126 (4th ed. 2008), AGW notes that the term “substantial” is defined as “relating to or having substance.” Id. AGW’s Br. at 11. Thus, AGW reasons that the Agreement provides for the sale of “all assets of any substance.” Id. AGW identifies the shareholder loans as such assets.

The adjective “substantial,” however, is not used in the Agreement. Instead, the Agreement notes AGW’s intent to buy “substantially all” of the assets. In this context, the word “substantially” is an adverb which is used to modify the adjective “all.” The statement making the reference to AGW’s purchase of “substantially all” of the assets explains the parties’ intent regarding the type and quantity of assets to be sold. The plain and ordinary meaning of the term “substantially all” indicates “most but not all of the assets.” As the drafter of the Agreement, AGW could have shown the sale of all assets by stating the sale was for “all of Whiskey Barrel’s assets” or “all Whiskey Barrel assets including but not limited to the following.” There is no ambiguity in this portion of the Agreement, and there is no reason to look outside the contract to extrinsic evidence.

In its response to Whiskey Barrel’s motion for partial summary judgment, AGW contended that the term “Accounts Receivable of Whiskey Barrel” was not defined in the four corners of the Agreement and was therefore ambiguous. AGW also contended that the term “accounts receivable” may refer to more than accounts to be paid by customers. In support of its contention, AGW cited 1 Am.Jur.2d Accounts and Accounting § 2 (1964), which defines an “account receivable” as “the amount one person owes to another on an unsettled account. When used in a contract selling ... such items, the term is construed according to the usual rules for the construction of contracts, taking into account the particular facts of each case.” AGW also cited Black’s Law Dictionary 13 (7th ed. 2000), wherein an “account receivable” is defined as “[a]n account reflecting a balance owed by a debtor; a debt owed by a customer to an enterprise for goods or services.” On the other hand, Whiskey Barrel cited Barron’s Dictionary of Accounting Terms 11 (2d ed. 1995) in its brief in support of its motion for the proposition that an “account receivable” means “amounts due a business on account from customers who have bought merchandise or received services.” AGW reasoned that because the term “account receivable” is “a term of art and it is ambiguous (since the parties have both advanced reasonably different interpretations of this term), the ambiguity cannot be resolved by the Court as a matter of law ... Rather, the meaning of the term must be resolved by the fact-finder.” (App.250).

Even though the term “account receivable” may be ambiguous under certain circumstances, ambiguity does not support the trial court’s denial of Whiskey Barrel’s motion for partial summary judgment. Whiskey Barrel designated Paragraph 27 of AGWs second amended complaint, which states that the “balance sheets of Whiskey Barrel dated May, 2008, evidence $827,128.20 in loan(s) (the “Indebtedness”) to the shareholders of Whiskey Barrel, who are, upon information and belief, [Ralph and Ann]. True and accurate copies of said balance sheets are attached hereto as Exhibit 3.” (App.144). Whiskey Barrel also designated Exhibit 3, which lists Account 11100, totaling $170,019.32 as “Accounts Receivable” and Account 13000, totaling $327,123.20 as “Loans to Shareholders” under the heading of “Other Current Assets.” (App.184). In response, AGW designated Paragraph 8 of McGowen’s supporting affidavit, which merely alleges that “[i]t was the intention of [AGW] in executing the, [Agreement] and completing the transaction that [AGW], as [purchaser was] bmdng all of the assets owned by [Whiskey Barrel] ...” (App.262).

The balance sheet attached to the second amended complaint by AGW and designated as evidence by Whiskey Barrel is unequivocal evidence of the meaning of “Accounts Receivable of Whiskey Barrel” as that term is used by AGW in the Agreement that it di’afted. The balance sheet clearly shows that the term “accounts receivable,” as used in the Agreement, does not include the shareholder loans (designated as “Other Current Assets, not “Accounts Receivable”). (App.184). McGowen’s unsupported claim does not rise to the level of evidence that creates a genuine issue of material fact on this issue. Accordingly, the trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on this issue.

2. 2008 Purdue Football Season Tickets

Whiskey Barrel contends that the trial court erred in determining that it was not entitled to summary judgment as a matter of law on Count VII of the second amended complaint. AGW responds that the 2008 Purdue football season tickets were sold under Recital E of the Agreement, which provides that “[Whiskey Barrel] desire[s] to sell and AGW desire[s] to buy substantially all of the ... assets [and] ... paraphernalia....” (App.418).

Recital E of the Agreement generally classified the specific types of Whiskey Barrel’s possessions to be sold. ' Paragraph 1 then specifies the particular categories of Whiskey Barrel’s possessions to be sold. This list does not include a specific reference to the 2008 Purdue football season tickets or to a category to which the tickets would apply. As we stated in our discussion of Issue 1 above, AGW, as the drafter of the Agreement, could have, but did not, draft the Recital to say that it would purchase all assets or Paragraph 1 to say that the list therein “included but was not limited to” the possessions specifically listed. The Agreement is unambiguous, and absent a claim that matches one of the exceptions to the parol evidence rule, there was no basis for the trial court to consider extrinsic evidence. The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on this issue.

3. Ralph and Ann’s Counterclaim for Conversion and Replevin of Personal Property

Ralph and Ann contend that the trial court erred in going beyond the four corners of the Agreement to decide their counterclaim for the conversion and return of personal property, including among other things, “bicycles, dune buggy, kids[’] toys and clothes, [a] biofeedback computer and accessories, contents of [a] safe, and other property not listed in “Exhibit C” to the [Agreement].” (App.102).

The trial court again looked at extrinsic evidence to determine that the AGW was entitled to these items because “the parties made a deal for sale of all assets that were located on and inside the Whiskey Barrel facility at Boswell.” (App.47). The trial court also determined that AGW was entitled to these items because Ralph and Ann had abandoned the denominated items of personal property.

As explained in our discussions of Issues 1 and 2, the Agreement is not ambiguous with reference to the types of assets that were purchased by AGW. Furthermore, the Agreement clearly states that “substantially all” assets were sold, not all assets of substance. In short, the Agreement expressly limits the assets to be sold to those listed in Paragraph 1 of the Agreement. Clearly absent from the list of assets contained in the Recital or Paragraph 1 of the Agreement, or in the exhibit attached to the Agreement, is any reference to Ralph and Ann’s personal property. Accordingly, there was no exception to the parol evidence rule which allowed the trial court to look to extrinsic evidence to determine that AGW purchased all of Whiskey Barrel’s and Ralph and Ann’s personal possessions. Therefore, the trial court erred in determining that AGW acquired Ralph and Ann’s personal property under the terms of the unambiguous Agreement.

The issue of abandonment, on the other hand, is not based upon the Agreement but upon the facts and circumstances of the case. The trial court’s finding and judgment will be reviewed under the “clearly erroneous” standard. See Morton v. Ivacic, 898 N.E.2d 1196, 1198-99 (Ind. 2008).

“Abandonment has been defined as the relinquishment of property to which a person is entitled, with no purpose of again claiming it, and without concern as to who may subsequently take possession .... ” Right Reason Publications v. Silva, 691 N.E.2d 1347, 1351 (Ind.Ct.App. 1998) (quoting Schaffner v. Benson, 90 Ind. App. 420, 423-24, 166 N.E. 881, 883 (1929)). To constitute an abandonment of property, there must be a concurrence of the intention to abandon and an actual relinquishment. Id. “An intention to abandon property ... may be inferred as a fact from the surrounding circumstances, and it can be shown by acts and conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property....” Id. (quoting 1 C.J.S. Abandonment § 5 (1985)). Abandonment of property divests the owners of their ownership, so as to bar them from further claim to it. Id.

Here, the trial court found that “[Ralph and Ann] have abandoned any claims to such property by failure to take it away before closing, to remove it during the six weeks [Ralph] worked for [American GardenWorks] after the closing, or to take it on September 25, 2008.” (App.47). This finding is insufficient to support the trial court’s conclusion, however, as it fails to recognize the unchallenged evidence that AGW hired Ralph and he worked at the former Whiskey Barrel until the middle or latter part of August until terminated. There is no evidence in the record that Ralph or Ann were prohibited from keeping personal property in buildings on the business property. Indeed, Ralph and Ann moved a truckload of the personal property -without objection, but when they requested to finish the move of the rest of the personal property, they were denied entry onto the business property to do so. Ralph and Ann’s request to move the remaining personal property is inconsistent with the requirement that there be a concurrence of the intention to abandon and an actual relinquishment. AGW clearly denied Ralph and Ann’s request to retrieve their personal property under the mistaken idea that the Agreement gave it possession of the property. In short, the trial court’s finding of abandonment is clearly erroneous.

The trial court erred as a matter of law in finding that Ralph and Ann’s personal property passed to AGW under the terms of the Agreement. Furthermore, the trial court’s finding and judgment regarding abandonment of that property are not suggested by the evidence and are clearly erroneous. Thus, Ralph and Ann are entitled to recover any personal property converted by AGW.

4. Attorney Fees

The trial court awarded $24,454.04. in attorney fees and costs to AGW on the basis of its judgment against Ralph and Ann “as to Count I, theft and conversion of cash-in-hand at closing, and Count IX, theft and conversion of the First National Bank account....” (App.52). The award was made pursuant to Indiana Code section 34-24-3-1, which provides that attorney fees and costs are recoverable when a party has suffered a pecuniary loss as a result of, among other things, theft and/or conversion. Although Whiskey Barrel does not contest the trial court’s judgment finding liability on the aforementioned counts, it does question the appropriateness of the amount of the attorney fee and costs award.

An award of attorney fees under Indiana Code section 34-24-3-1 is appropriately limited to “those fees incurred because of the basis underlying the award.” SJS Refractory Co. v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 767 (Ind.Ct.App.2011). The party requesting an award of attorney fees “bears the burden of proving an appropriate allocation of fees between the issues for which fees may be assessed and those for which they may not.” Id. “While a perfect breakdown is neither realistic nor expected, a reasonable, good faith effort is anticipated.” Id. We review the award of attorney fees under the statute for an abuse of discretion. Id. An abuse of discretion is occurs only when the result is clearly against the logic and effect of the facts and circumstances before the court. West Cent. Conservancy Dist. v. Burdett, 920 N.E.2d 699, 702 (Ind. Ct.App.2010). The fact that the same circumstances might justify a different outcome does not permit the substitution of this court’s judgment for that of the trial court. Id.

Here, AGW’s counsel submitted an attorney fee affidavit, which revealed that counsel had over thirty years of experience “trying a wide variety of civil cases, jury trials and bench trials.” (App.416). Counsel stated that he and his paralegal expended 404.55 hours on the 13-count ease for a total fee of $72,344.75 -with litigation costs of $4,454.02. Counsel alleged:

There were 13 counts in Plaintiffs’ Amended Complaint with some counts dealing with essentially the same issues of fact but different legal theories (for instance, 3 counts involving the vehicles — theft and conversion, breach of warranty, declaratory judgment). The discovery in the case — document exchanges, interrogatories, depositions— involved all of these issues blended together. Preparation for trial, the actual trial, and the preparation of a Post-Trial Brief and Proposed Findings of Fact and Conclusions of Law likewise involved all of these issues blended together in the presentation of evidence and argument. Because of this, it is very difficult and highly impractical to separate out the specific amounts of time devoted to Counts I and IX, the counts of the Complaint for which the Court has ruled attorney fees are recoverable. Plaintiffs and counsel therefore respectfully request that the court award attorney fees based on what a contingency fee would be.
The Court awarded the sum of $57,738.00 on Count I involving the theft and conversion of the cash-in hand at closing, and further awarded the net sum of $18,911.04 on Count IX involving the theft and .conversion of the First Financial Bank account, for a total of $76,649 on those two counts of the Amended Complaint.
The undersigned counsel has litigated and tried many civil cases over the past 30 years involving hourly fees and contingent fees. A customary contingent fee for handling business litigation for cases similar to this is a 40% contingent fee if the case goes to trial. Such a contingent fee is fair and reasonable. In the opinion of the undersigned, in view of the complexity of the legal and factual issues in the case, as well as the time and skill necessary to prosecute the case to a successful conclusion, a contingent fee of 40% of the amount recovered on Counts I and IX, is reasonable and appropriate. In light of the recovery of $76,649.04, such contingency fee calculates to $30,660 in attorney fees. Plaintiffs and counsel therefore respectfully request an award of $30,660 in attorney fees for Counts I and IX.
Counsel further requests the Court award an appropriate amount for recovery of Plaintiffs’ litigation costs, which total $4,454.02.

(App.417).

Ralph and Ann cite Lumber-mens Mut. Cas. Co. v. Combs, 873 N.E.2d 692 (Ind.Ct.App.2007), trans. denied, in support of their argument that the request for attorney fees was not supported by sufficient evidence. In Lumbermens, we held that “[contingency fee agreements may not be used as the basis for determining the reasonable attorney[] fee to be paid by a nonparty to that fee arrangement.” Id. at 722 (quoting Mason v. Mason, 561 N.E.2d 809, 811 (Ind.Ct.App. 1990)). A trial court’s award of attorney fees based on a contingency fee contract is inappropriate because such arrangements are susceptible to abuse. Id. The party who stands to be awarded attorney fees by the trial court must be content with reasonable attorney fees based upon traditional factors. Id. The determination of the reasonableness of an attorney fee requires consideration of all relevant circumstances, including the attorney’s experience, ability, and reputation, the nature of the employment, the responsibility involved, and the results obtained. Id.

While AGW’s counsel requested an award based upon a contingency basis, it is clear that the trial court, as evidenced by an award that was $10,000 less than requested, did not determine its award upon a contingency basis. We note, however, that Counts I and IX — representing only $76,649 of a much larger amount in claims and only 2 of 13 counts — are relatively minor issues. Additionally, we observe that AGW’s counsel did not provide the trial court with information that made it possible for the court to determine the number of the 404.5 hours worked by counsel and the number worked by his paralegal. We cannot determine from the record whether the trial court correctly exercised its discretion. Accordingly, we remand for further proceedings.

In addition, we note that Indiana Code section 84-24-3-1(2) allows for an award of “costs of the action.” AGW did not set forth the nature of its costs, and we are unable to determine whether the costs are recoverable under the statute.

CONCLUSION

The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on Counts III and VII. The trial court also erred in determining that Ralph and Ann’s personal property was transferred to AGW under the Agreement and that the property had been abandoned by them. Finally, the record is insufficient to determine whether the trial court properly exercised its discretion in determining the amount of the attorney fee award and costs to AGW.

Reversed and remanded for further proceedings consistent with this opinion.

BAKER, J., and BAILEY, J., concur.

      . Accordingly, there is no basis for an exception to the parol evidence rule, and the evidence designated by AGW should not have been considered by the trial court.

      . Contrary to AGW’s counsel’s claim, it is not highly impractical to allocate the fees in conversion cases. See SJS, 952 N.E.2d at 767-68.


author: VAIDIK, Judge.

text:
    Barbara (Rosario) BESSOLO, Appellant-Petitioner, v. William I. ROSARIO, Appellee-Respondent.
    No. 29A02-1108-DR-789.
    Court of Appeals of Indiana.
    April 17, 2012.

      Rodney T. Sarkovics, Campbell Kyle Proffitt LLP, Carmel, IN, Attorney for Appellant.
    Eric J. Benner, Timothy J. Hixson, Richards, Boje, Pickering, Benner & Becker, Noblesville, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Following dissolution of their marriage, Barbara (Rosario) Bessolo (“Mother”) and William Rosario (“Father”) were involved in disputes concerning their young daughter. In response to the many motions that followed, the trial court found that Mother failed to dismiss the protective order against Father as required by the dissolution decree, held her in contempt, and awarded compensatory damages and attorney’s fees to Father. While we conclude that these rulings were proper, we reach a contrary result regarding the ten-day suspended sentence imposed on Mother for future violations of any of the court’s orders. We affirm in part and reverse in part.

Facts and Procedural History

Mother and Father have one child together, S.R., born December 4, 2005. In June 2010, Mother filed a petition for dissolution. During dissolution proceedings, Mother and Father reached a mediated settlement agreement. A key feature of the agreement was the requirement that Mother dismiss a protective order against Father on or before November 12. However, the settlement agreement expressly provided that its terms were not binding until the agreement was approved by the court. Mother signed the agreement on November 5, 2010. After a brief delay, Father also signed the agreement. The dissolution court approved and incorporated the agreement into the dissolution decree and dissolved the parties’ marriage on November 30, 2010. The clerk file-stamped the decree and delivered it to counsel the next day, December 1. Mother did not dismiss the protective order.

One incident is relevant to this appeal. On December 5, 2010, a parenting-time exchange was scheduled. Mother sent the parties’ former housekeeper, Vita, to pick up S.R. S.R. entered Vita’s car while Father was making a phone call. Mother was also in the car Vita was driving, though she did not make her presence known to Father and Father could not see her through the car’s tinted windows. Vita drove away with S.R. while Father was on the phone. Father followed the vehicle and contacted the Carmel Police Department. Mother also contacted the Carmel Police Department and informed a dispatcher that Father was following their car and that the parties’ divorce had recently been finalized, which made Father upset. She told the dispatcher a number of times that she had a protective order against Father. The dispatcher instructed Mother to go with Vita and S.R. to a public place, a nearby grocery store parking lot, instead of returning to Mother’s home. Meanwhile, the dispatcher speaking to Father told him to pull into the same grocery store parking lot and wait in his car for authorities.

Officers met Mother and Father in the parking lot. Mother told them that she had a protective order against Father. The officers confirmed that a protective order was still in place. Father was arrested and spent twenty hours in jail before being released on his own recognizance. No charges were filed against him. Mother filed a motion to dismiss the protective order two days later, which was granted. On December 21, Father filed a verified motion to show cause requesting that Mother be held in contempt for her actions on December 5.

The trial court heard evidence on Father’s contempt motion at a number of hearings with the final hearing held in June. At the hearings, both parties discussed the December 5 incident. Father stated that he spoke with Mother during the exchange but did not know Mother was in Vita’s car. He explained that he contacted authorities and followed the car because Vita left suddenly with S.R. without his consent and because he wanted to know that S.R. was being returned to Mother’s care. Father also said that he thought the protective order had been dismissed. Tr. p. 240. He testified that his arrest and imprisonment caused him to be absent from work for one day and lose $450 in income. Id. at 229. He also stated that he later had his record expunged, which cost $2500, and submitted evidence of his attorney’s fees. See Respondent’s Exs. I, K.

Mother testified that she sent Vita to pick up S.R. because “there was a protective order in place and I didn’t want to have any trouble.” Id. at 287. When asked about the requirement that she dismiss that very order, the following exchange occurred:

MR. BENNER [Father’s Counsel]: It says right there when you are to dismiss the protective order, doesn’t it?
[Mother]: My understanding is that this is valid assuming that the divorce decree was signed on November 5, which it wasn’t.
MR. BENNER: Judge Campbell signed it on November 30, didn’t he?
[Mother]: Yes.
MR. BENNER: It went into [e]ffect on November 30, didn’t it?
[Mother]: I believe so.
MR. BENNER: Okay, I think you just testified just a few minutes ago you wanted it to go into [e]ffect immediately didn’t you?
[Mother]: Yes.
MR. BENNER: You wanted both yourself and [Father] to be bound by this immediately, didn’t you?
[Mother]: The minute it was signed.
MR. BENNER: And you knew what you signed, didn’t you?
[Mother]: Say that again, sorry?
MR. BENNER: You knew exactly what your obligations were under this agreement when you signed it, didn’t you? [Mother]: When I signed it on November 5, yes. But he signed it many days later.

Id. at 295-96.

Mother also confirmed that she spoke to Father by phone during the exchange but did not inform him of her presence. Mother implied, however, that Father knew she was in the car with Vita and S.R., and that after their car pulled away, Father began “speeding and chasing” the car. Id. at 290. Officer Bryan Martin, one of the officers at the scene, also testified about the exchange. Officer Martin stated that Mother indicated that there was a protective'order in place, and when the officers confirmed the validity of the order, he was required to arrest Father. Id. at 319-20.

In July 2011, the trial court ruled on the parties’ motions. In pertinent part, the court found Mother in contempt for failing to timely dismiss the protective order against Father, explaining that Mother “used the protective order as a way to have [Father] arrested,” despite knowing “she was obligated to dismiss the protective order pursuant to the divorce decree.” Appellant’s App. p. 10. Mother was ordered to pay Father a total of $10,000 in compensatory damages — $2500 to expunge his arrest record and $7500 for “[Father’s] arrest and time in jail ... for his inconvenience, embarrassment, and mental suffering.” Id. at 11. The court also “impose[d] a 10-day suspended jail sentence which may be served if [Mother] violates this Court’s orders in the future.” Id. The trial court awarded Father attorney’s fees in the amount of $10,000 for “bringing his motion for rule to show cause and for [Mother’s] contempt of court and incurred for successfully defending [Mother’s] mer-itless motion to restrict [Father’s] parenting time.” Id. at 12.

Mother now appeals.

Discussion and Decision

Mother raises three issues on appeal. First, she contends that the trial court erred by finding her in contempt. Specifically, Mother argues that the dissolution decree required her to dismiss the protective order by November 12, 2010, but the decree was not entered until December 1, thus she could not have been in contempt for failure to act by November 12. Mother also argues that the suspended sentence imposed on her for future violations of court orders was punitive. Second, Mother argues that the trial court erred by awarding Father $10,000 in compensatory damages, as there was no evidence in the record to support this award and because she was not responsible for his arrest. Finally, Mother claims that the award of attorney’s fees to Father was error because the trial court did not consider the parties’ incomes or earning abilities. We address each of Mother’s contentions in turn.

I. Contempt

Mother contends that the trial court abused its discretion by finding Mother in contempt for failing to dismiss the protective order against Father on or before November 12, 2010. Mother also argues that the trial court erred by imposing on her a ten-day suspended jail sentence for future violations of the court’s orders.

“Uncontradicted evidence that a party is aware of a court order and willfully disobeys it is sufficient to support a finding of contempt.” Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind.Ct.App.2002) (citations omitted). A determination of whether a party is in contempt is a matter within the trial court’s sound discretion, and we reverse only where there has been an abuse of that discretion. Id. An abuse of discretion occurs where the trial court’s decision is against the logic and effect of the facts and circumstances before the court. Id.

Mother and Father reached a settlement agreement that was approved by the trial court and incorporated into the dissolution decree. The agreement required Mother to dismiss the protective order against Father by November 12, 2010; however, a brief delay caused the agreement to be approved by the court after this date, on November 30. Mother correctly notes that the agreement’s terms were not binding until approved by the court; thus, she was not required to dismiss the protective order by November 12. Consequently, she cannot be held in contempt for failing to do so. However, the trial court did not find Mother in contempt for failing to dismiss the protective order by November 12. The contempt finding was based on Mother’s failure to dismiss the protective order after the parties’ dissolution was finalized on December 1 and for telling the police that the protective order was in place despite knowledge that she was required to dismiss it.

Mother’s additional challenges to the contempt finding — specifically, that Father delayed submission of the agreement and that after she received it she had a limited amount of time in which to file the motion to dismiss the protective order — are undercut by her actions and statements made to authorities on December 5. As the trial court explained, Mother was aware that the court had dissolved the marriage and that the dissolution decree entered on December 1 required her to dismiss the protective order. By December 5, she had still not dismissed the order, and represented three separate times to the 911 dispatcher and again to police officers on the scene that she had a valid protective order against Father. The trial court explained that Mother “used the protective order as a way to have [Father] arrested.” Appellant’s App. p. 10. Even if Mother had no say in whether Father was ultimately arrested, the trial court recognized that she set the metaphorical wheels in motion for this result. Because Mother was aware that she was required to dismiss the protective order but failed to do so and later relied upon it in her dealings with authorities, the trial court did not err in finding Mother in contempt.

II. Sanctions for Contempt

A. Compensatory Damages

Mother challenges the trial court’s award of compensatory damages to Father of $10,000 — $7500 for Father’s inconvenience, embarrassment, and mental suffering for being arrested and imprisoned, and $2500 for the cost of having his record expunged. The $7500 award was error, Mother claims, because it was not based on evidence or documentation. The $2500 award was also erroneous, Mother argues, because Father’s arrest was the result of his own delay of the submission of the settlement agreement and because Carmel police officers, not Mother, made the decision to arrest Father.

“Once a party has been found in contempt of court, monetary damages may be awarded to compensate the other party for injuries incurred as a result of the contempt.” Phillips v. Delks, 880 N.E.2d 713, 720 (Ind.Ct.App.2008) (citations omitted). In determining an amount of damages, the trial court may take into account “the inconvenience and frustration suffered by the aggrieved party.” Id. The determination of damages in a contempt proceeding is within the trial court’s discretion, and we will reverse an award of damages only if there is no evidence to support the award. Id.

Mother argues that the trial court’s $7500 award was error under Phillips, in which we reversed a damage award of $25,000 because no evidence was submitted to support the award. Id. at 721. However, in Phillips, we addressed a quantifiable loss — damage to an individual’s credit score. Financial loss was also at issue in City of Gary v. Major, 822 N.E.2d 165, 172 (Ind.2005). In City of Gary, our Supreme Court reversed a damage award of $150,000 for the loss of towing contracts because there was no evidence presented to support the award. Id. Here, by contrast, we address the value of an intangible loss that is not so readily quantifiable, the loss of one’s freedom. Because Phillips and City of Gary address financial loss, they do not aid our analysis.

Instead, we turn to cases involving an individual’s loss of freedom. We have discussed the impact of false imprisonment, stating, “The conduct of the defendant in such circumstances is characterized as being willful, callous, or malicious, which may produce a variety of reactions, such as fright, shock, humiliation, insult, vexation, inconvenience, worry, or apprehension.” Conwell v. Beatty, 667 N.E.2d 768, 776 (Ind.Ct.App.1996) (citations omitted), reh’g denied. While it may be difficult to assign a compensatory value to the loss of freedom, we have upheld awards of damages for this loss. See Lazarus Dep’t Store v. Sutherlin, 544 N.E.2d 513, 526 (Ind.Ct.App.1989) (evidence that wrongfully-detained shopper was incarcerated just before the holidays, subjected to embarrassment and humiliation in criminal processing including being strip searched, worried about future prosecution, and suffered physical manifestations of trauma associated with arrest supported award of over $300,000), reh’g denied, trans. denied; see also Dubreuil v. Pinnick, 178 Ind.App. 526, 533, 383 N.E.2d 420, 424 (1979) (stating that in action for false imprisonment, “plaintiff may recover for wounded pride and humiliation.”).

Though there are no allegations of false imprisonment here, we find the analogy an apt one. Mother failed to dismiss the protective order against Father even though she knew she had to do so. She then informed police of the order. As a result, Father was arrested. Officers handcuffed him in front of his young daughter, in a public parking lot. This was a humiliating experience. See Tr. p. 227. Father was held in jail for twenty hours and missed a day of work. There is sufficient evidence to support the trial court’s $7500 award.

Mother’s challenge to the trial court’s award of $2500 also fails. Here we reiterate our earlier conclusion — it matters not that it was the police, not Mother, who decided to arrest Father. It is undisputed that Mother knew she was required to dismiss the protective order. She did not do so. Instead, she informed authorities the order was still in place, which led to Father being arrested and imprisoned. After his release, Father spent $2500 to have his record expunged. The trial court did not err in awarding Father $2500.

B. Ten-day suspended jail sentence

Mother challenges the trial court’s imposition of a ten-day suspended jail sentence for future violations of the court’s orders. Mother argues that this sentence is punitive because she has already complied with the provision of the decree at issue by dismissing the protective order and cannot purge herself of future contempt because the trial court makes only a vague reference to future violation of court orders.

The principal purpose of a civil-contempt proceeding is not to punish the contemnor but rather to coerce action for the benefit of an aggrieved party. Thompson v. Thompson, 811 N.E.2d 888, 905 (Ind.Ct.App.2004) (citing Moore v. Ferguson, 680 N.E.2d 862, 865 (Ind.Ct.App.1997), trans. denied), reh’g denied, trans. denied. “While any imprisonment, of course, has punitive and deterrent effects, such imprisonment shall be viewed as remedial rather than punitive if the court conditions the contemnor’s release upon the contemnor’s willingness to comply with the order from which the contempt finding was based upon.” Id. at 906 (emphasis added). Put differently, a contempt order seeks to coerce compliance with a specific order of a court — the specific order violated by the contemnor. Id.,see also Moore, 680 N.E.2d at 865 (“[T]he issue before us is whether the contempt sentence was of a nature that could coerce Moore into compliance with the original support orders .... ”); Dawson v. Dawson, 800 N.E.2d 1000, 1003 (Ind.Ct.App.2003) (“[A] trial court may use its contempt power to ... coerce a party into compliance with an underlying order or decree.”).

Here, the sentence imposed by the court did not coerce compliance with a specific order of the court. Rather, the sentence coerced compliance with any order of the court. And this is undoubtedly so because Mother had already complied with the court’s order to dismiss the protective order and there is no indication that the parties will have protective orders in the future that Mother could or would fail to dismiss. Because the suspended sentence does not coerce current or future compliance with a specific court order, it was error.

C. Attorney’s fees

Finally, Mother contends that the trial court erred by awarding Father attorney’s fees as the court did not consider the parties’ incomes or earning abilities. Mother also argues that the amount of attorney’s fees awarded to Father was error. We also address Father’s request for appellate attorrey’s fees.

In post-dissolution proceedings, the trial court may order a party to pay a reasonable amount for attorney’s fees. Julie C. v. Andrew C., 924 N.E.2d 1249, 1261 (Ind.Ct.App.2010). The trial court has broad discretion in awarding attorney’s fees. Id. Reversal is proper only where the trial court’s award is clearly against the logic and effect of the facts and circumstances before the court. Id. In assessing attorney’s fees, the trial court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors bearing on the reasonableness of the award. Id. In addition, any misconduct on the part of a party that directly results in the other party incurring additional fees may be taken into consideration. Id. Further, “the trial court need not give its reasons for its decision to award attorney’s fees.” Thompson, 811 N.E.2d at 928.

The basis for the award of attorney’s fees is Mother’s misconduct. This was a proper consideration for the trial court. See Julie C., 924 N.E.2d at 1261. Mother contends, however, that the trial court erred by awarding attorney’s fees to Father because the court did not consider the parties’ financial resources or earning abilities. In response, Father points out that the parties submitted a child support worksheet before the entry of the dissolution decree. Father also notes that the parties discussed the decree and its support provisions during the hearings on the motions before the court and that the court specifically asked whether Mother was working.

Indeed, the record shows that the trial court reviewed the parties’ financial data when considering child support for 5.R. We assume this information was considered when the court awarded attorney’s fees. See MacIntosh v. MacIntosh, 749 N.E.2d 626, 632 (Ind.Ct.App.2001), trans. denied. Further, during the final hearing on the parties’ motions, the trial court confirmed Mother’s continuing employment. Tr. p. 399. We conclude that the trial court appropriately considered the parties’ economic circumstances.

Mother sets forth many other challenges to the amount of attorney’s fees awarded to Father. Mother first alleges that the amount awarded was error because Father received nearly all the fees requested despite not prevailing on several issues. However, as Mother expressly states, Father did not receive all the fees requested. He was also ordered to pay Mother $2000 in attorney’s fees, for her pursuit of a contempt motion on this issue of child support. See footnote 2, supra. This indicates that the trial court considered the amount of fees appropriate given the success of both parties on their various motions. Mother also claims that the court erred by awarding Father attorney’s fees because he was represented by two attorneys at trial. Because Mother did not make this argument to the trial court, it is waived. See Stainbrook v. Low, 842 N.E.2d 386, 396 (Ind.Ct.App.2006) (stating that an appellant who raises an issue for the first time on appeal waives the issue), tram, denied. Notwithstanding such waiver, there is no evidence to suggest that the attorneys engaged in duplicitous billing. The trial court did not err in awarding Father $10,000 in attorney’s fees.

Finally, Father requests that Mother pay his appellate attorney’s fees. Father states that Mother was ordered to pay his attorney’s fees at the trial level due in part to her contempt and “her misconduct in continuing to pursue a mer-itless request to restrict [Father’s] parenting time.” Bessolo v. Rosario, No. 29A02-1108-DR-789 (Ind.Ct.App. Feb. 10, 2012). Father claims that this misconduct increased his fees at the trial level and that Mother continues to increase these costs by pursuing this appeal.

Our appellate rules authorize us to “assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). Damages will be assessed only where an appellant, acting in bad faith, maintains a wholly frivolous appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind.Ct.App. 2010) (citations omitted). While Appellate Rule 66(E) permits us to award damages on appeal, we must act with extreme restraint in this regard due to the potential chilling effect on the exercise of the right to appeal. Id. “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Id. To prevail on his claim, Father must show that Mother’s contentions and arguments on appeal are “utterly devoid of all plausibility.” Bergerson v. Bergerson, 895 N.E.2d 705, 716 (Ind.Ct.App.2008) (citations omitted).

Because Mother prevailed on appeal on one issue, we cannot say that Mother’s arguments are utterly devoid of all plausibility such that an award of appellate attorney’s fees would be appropriate.

Affirmed in part and reversed in part.

ROBB, C.J., and NAJAM, J., concur.

      . The record does not indicate the reason for this delay. See Tr. p. 279.

      . The parties also filed motions related to an unsubstantiated allegation of child abuse as well as personal property, which are not at issue here. Mother also filed a verified motion to show cause, requesting that Father be held in contempt for failure to pay child support. The trial court found Father in contempt and awarded Mother $2000 in attorney's fees for pursuit of that motion. Appellant's App. p. 12.

      . Mother's arguments regarding ambiguity and invited error are not relevant to our analysis as we conclude that the trial court did not find Mother in contempt for failure to dismiss the protective order by November 12, 2010. Thus, any ambiguity or delay in submission of the agreement to the court has no bearing on the trial court’s finding that Mother failed to dismiss the protective order after entry of the decree and for representing to authorities that the 'protective order was in place despite knowledge that she was required to dismiss it. See Appellant's App. p. 10-11.

      . Mother argues for the first time in her reply brief that Father failed to offer proof of mental anguish as required by Lazarus Dep't Store, 544 N.E.2d 513, 526. We decline to respond to this new argument as the purpose of a reply brief is to respond to the appellee's arguments, not to raise new issues. See Ind. Appellate Rule 46(C) ("No new issues shall be raised in the reply brief”). Nevertheless, there is sufficient evidence of Father's humiliation and embarrassment at being arrested in a public place, in S.R.’s presence, to support the award.

      . Both parties discuss Bartlemay v. Witt in this context. 392 N.E.2d 219, 228 (Ind.Ct.App.2008). In Bartlemay, the trial court sentenced father lo ten days imprisonment but suspended the sentence pending his compliance with future court orders. We noted the parties’ agreement that the sentence was inappropriate and reversed: "As [mother] acknowledges, the trial court’s order imprisons [father] for fulure noncompliance and does not give him an opportunity to purge himself of the contempt with compliance.” Id. The brevity of this analysis does not shed light on the appropriateness of the sentence here.

      . Because we resolve this issue as we do, we need not consider Mother's argument that the trial court erred by awarding attorney’s fees to Father under Indiana Code section 34-52-1-1, which pertains to frivolous actions. There is no evidence that the trial court based its determination on this section, and we have already concluded that the award was proper exercise of the court's discretion to award attorney’s fees in post-dissolution proceedings. See Julie C., 924 N.E.2d at 1261.