author: RUCKER, Justice.

text:
    John KIMBROUGH, III, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 45S04-1212-CR-687.
    Supreme Court of Indiana.
    Dec. 19, 2012.
    Opinion, 965 N.E.2d 773, vacated in part.

      P. Jeffrey Schlesinger, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

Defendant John W. Kimbrough was convicted of multiple counts of child molesting and sentenced to an aggregate term of eighty years. Concluding the trial court abused its sentencing discretion the Court of Appeals remanded this cause with instructions to impose an aggregate term of forty years. We grant transfer and affirm the judgment of the trial court.

Facts and Procedural History

The facts most favorable to the verdicts follow. Mother and Kimbrough began dating in January 2009. Later that summer, Mother introduced Kimbrough to her children, including her daughters, J.L. born January 2003 and A.D. born July 2004. The couple and children began to function as a family, even staying at hotels together to allow the children to swim in the hotel pools. Kimbrough often drove the girls to school and helped with their homework. In the spring of 2010, the relationship ended. Nonetheless Mother continued to allow Kimbrough to take the children to school because they loved Kim-brough and Mother trusted him.

The evidence showed that in October 2010, Mother observed that J.L. “seemed as if she was hiding something” or “as if she was scared.” Tr. at 105. A.D. reluctantly told Mother that her vagina hurt and the girls eventually stated that Kim-brough had touched them both inappropriately. On October 30, 2010, law enforcement was contacted. That same day, both girls were taken to the emergency room of the local hospital where a physician — Dr. Kathryn Watts — examined each child. Later that same evening Kimbrough was arrested. On November 5, 2010, the State charged Kimbrough with four counts of child molesting as Class A felonies and two counts of child molesting as Class C felonies.

A jury trial began on May 5, 2011,- during which both A.D. and J.L. testified regarding specific encounters with Kim-brough. A.D. testified that she had a front and a back private part and said that she called her private part a “cootie eat” but she didn’t have a name for Kim-brough’s private part. Tr. at 178. A.D. testified that while they stayed at the hotels Kimbrough stuck his private part in her front cootie cat and her backside and he would lick her cootie cat. She later detailed that Kimbrough put his private part in her cootie cat while they were present in the basement of Kimbrough’s home. A.D. said that when Kimbrough touched her, she told Kimbrough to stop and he responded, “No.” Tr. at 204. A.D. also testified that her sister was always with her when these acts occurred and that she saw Kimbrough stick his private part into her sister’s cootie cat as well.

J.L. testified that Kimbrough touched her in her private part and in the back with his private part more than once. She also said that he put his finger in her private part and he put his private part in her private part. She identified the female pubic area from sketches as the female private part and identified a drawing that she made, which she characterized as a picture of Kimbrough’s private part. J.L. testified that these touchings occurred at the hotel and in the basement of Kim-brough’s home.

Dr. Watts also testified at trial noting that during her examination of the two girls she found a small break in J.L.’s hymen, which may have resulted from sexual assault. Dr. Watts further explained that she had discovered redness around A.D.’s vaginal openings and approximately a one-centimeter tear in A.D.’s hymen. Dr. Watts explained that such tears are not unusual but these types of openings may result from sexual abuse. Dr. Watts also stated that penetration may cause redness around the vaginal openings. In addition, Dr. Watts testified as to the composition of the female sex organ. According to Dr. Watts:

[t]he female sex organ is many parts that we would consider. Goes all the way from the outer labia. In the vaginal lips is what ... people would call them in the lay terms all the way up into the uterus. So the vaginal vault, the clitoris. It is all that area, outside and internal.

Tr. at 310. She also testified that “[t]he female organs make up the entire female genitalia.” Tr. at 310.

During final instructions the trial court advised the jury: “‘[fjemale sex organ’ includes any part of the female sex organ, including the vaginal vault, labia and[7]or the external genitalia.” App. at 72. At the conclusion of a four-day trial, the jury found Kimbrough guilty as charged on all counts. Apparently due to double jeopardy concerns the trial court merged the Class C felonies into the Class A felonies and entered judgments of conviction on the Class A felonies only. Running some of the sentences concurrently and others consecutively, the trial court sentenced Kimbrough to an aggregate term of eighty years. Kimbrough appealed raising the following rephrased issues: (1) was the evidence sufficient to sustain the convictions, (2) did the trial court err in instructing the jury on the definition of female sex organ, and (3) did the trial court abuse its discretion in sentencing Kimbrough.

In an unpublished memorandum decision, the Court of Appeals affirmed Kim-brough’s .convictions. However, a divided panel concluded the trial court abused its discretion in sentencing Kimbrough and remanded this cause to the trial court with instructions to impose an aggregate term of forty years. See Kimbrough v. State, No. 45A04-1106-CR-328, slip op. at 10-11, 2012 WL 983147 (Ind.Ct.App. March 21, 2012). We grant transfer thereby vacating the decision of the Court of Appeals. See Appellate Rule 58(A). We address Kim-brough’s sentencing claim and summarily affirm that portion of the Court of Appeals’ decision concerning Kimbrough’s remaining claims. Additional facts are set forth below as necessary.

Discussion

In Anglemyer v. State this Court emphasized that subject to the review and revise authority afforded by Indiana Appellate Rule 7(B) “sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” 868 N.E.2d 482, 490 (Ind.2007), (citation omitted), clarified on other grounds on reh’g 875 N.E.2d 218. The Court gave a few examples for ways in which a trial court may abuse its discretion: (1) failing to enter a sentencing statement, (2) entering a sentencing statement that explains reasons for imposing the sentence but the record does not support the reasons, (3) the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or (4) the reasons given in the sentencing statement are improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91. We noted, however, that because of the then new statutory scheme “the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence” and thus “a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491. The Court continued, “this is so because once the trial court has entered a sentencing statement, which may or may not include the existence of aggravating and mitigating factors, it may then ‘impose any sentence that is ... authorized by statute; and ... permissible under the Constitution of the State of Indiana.’ ” Id. at 491 (quoting I.C. § 35-38 — 1—7.1(d)).

In this case, on appeal Kimbrough argued the trial court abused its discretion in sentencing him because (1) the trial court considered the age of the victims even though an element of the offense was that the victims were under the age of fourteen, and (2) the trial court considered that the offenses were committed on multiple occasions. On this latter point Kim-brough contends there was no evidence to support this factor. Citing his lack of criminal history Kimbrough requested that the reviewing court “recognize that his mitigating circumstances outweighed aggravating ones and remand with instructions to enter a lesser sentence.” Br. of Appellant at 14.

Addressing Kimbrough’s sentencing claim the Court of Appeals correctly noted that even where the age of the victim is an element of the offense, the very young age of a child can support an enhanced sentence as a particularized circumstance of the crime. See Buchanan v. State, 767 N.E.2d 967, 971 (Ind.2002) (finding it proper for a trial court to rely upon the age of a victim of child molesting when the trial court noted that victim was of particularly “tender years”). Here the trial court noted the victims were approximately five and seven years of age when the molestations first began to occur. The Court of Appeals also correctly pointed out that the evidence supported the conclusion that the molestations occurred over a nearly two-year period between January 2009 and October 2010. In sum the Court of Appeals correctly concluded that the trial court did not abuse its discretion in the finding of aggravating factors. Thus, in Anglemyer terms, the trial court entered a reasonably detailed sentencing statement that explained the trial court’s reasons for imposing the sentence and the record supported those reasons. See Anglemyer, 868 N.E.2d at 490. However, asserting a “duty ... to ‘correct sentencing errors, sua sponte, if necessary,’ ” Kimbrough, No. 45A04-1106-CR-328, slip op. at 10 (quoting Comer v. State, 839 N.E.2d 721, 726 (Ind.Ct.App.2005) (noting trial court abused its sentencing discretion by relying on an aggravating factor not supported by the record)), and observing that lack of criminal history is a substantial mitigating factor, the Court of Appeals majority determined that the trial court abused its discretion by imposing an eighty-year sentence. Although declaring that it was “[floeusing on the appropriateness of the sentence and not the weight given to individual aggravating or mitigating factors,” Kimbrough, No. 45A04-1106-CR-328, slip op. at 10, the majority nonetheless concluded “the existence of this substantial mitigating factor” justified a forty-year aggregate sentence and remanded this cause to the trial court “to enter an order imposing the sentence outlined above.” Id.

We disagree with our colleagues for several reasons. First, it is certainly true that a trial court may abuse its discretion where the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration. See Anglemyer, 868 N.E.2d at 490-91. But in this case the trial court’s sentencing statement did not omit consideration of Kimbrough’s lack of a criminal history. Instead the statement specifically noted as a mitigating factor that Kimbrough “has no history of delinquency or criminal activity.” App. at 94. Thus, even assuming without deciding that in this post-Angle-myer era appellate courts have a “duty ... to correct sentencing errors, sua sponte,” Comer, 839 N.E.2d at 726, we fail to see how the sentence here was erroneous on grounds that the trial court omitted a reason supported by the record. Second, by describing Kimbrough’s lack of criminal history as a “substantial mitigating factor,” and remanding this case with instructions to impose a reduced sentence, the Court of Appeals majority implicitly suggested the trial court should have given greater weight to this factor. But Anglemyer makes clear that when imposing a sentence a trial court “no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other” and thus “a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491. Here, the trial court did in fact weigh aggravating and mitigating factors giving more weight to three aggrava-tors than the sole mitigator. And the trial court cannot be said to have abused its discretion in so doing. See id. Thus on this ground the trial court also did not abuse its discretion in imposing Kim-brough’s sentence.

This brings us to the Court of Appeals’ declaration that it was “focusing on the appropriateness of the sentence.” Although not cited by the majority, this language implicates Indiana Appellate Rule (7)(B) which provides “[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Even though a trial court may have acted within its lawful discretion in determining a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and revision of a sentence imposed by the

trial court.” Buchanan, 767 N.E.2d at 972. This appellate authority is implemented through- Rule (7)(B). First, we agree with Judge Mathias who in dissent noted “a request for sentence revision under Appellate Rule (7)(B) is not truly a claim of sentencing error. Rather, it is a request for [the] court to exercise its constitutional authority to revise a lawfully entered sentence.” Kimbrough, No. 45A04-1106-CR-328, slip op. at 14 n. 3 (citation omitted). Further, and importantly, in his brief before the Court of Appeals Kimbrough did not seek sentencing revision, did not cite to or rely upon Appellate Rule (7)(B) and thus said nothing about the nature of the offenses or his character. As we have declared “a defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). Here Kimbrough made no attempt to do so. “When a defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution ... the reviewing court is presented with the issue of whether to affirm, reduce, or increase the sentence.” McCullough v. State, 900 N.E.2d 745, 750 (Ind.2009) (emphasis added). Kimbrough made no such request and therefore there was no issue in this regard to be considered by a reviewing court.

In summary, because the trial court correctly entered its sentencing statement in compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in imposing Kim-brough’s sentence. Further, Kimbrough did not seek review and revision of his sentence under Indiana Appellate Rule (71(B).

Conclusion

We affirm the judgment of the trial court.

DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.

      . We note in passing that in his dissent Judge Mathias also observed that Kimbrough advanced no argument under Appellate Rule 7(B) and thus he would not have reached the issue of the appropriateness of Kimbrough’s sentence. Nonetheless, Judge Mathias undertook a thorough analysis of the nature of Kimbrough’s offenses and his character and concluded that Kimbrough’s sentence was not inappropriate. See Kimbrough, No. 45A04-1106-CR-328, slip op. at 13, 15-17.


source: Caselaw Access Project

author: BRENT E. DICKSON, Chief Justice.

license: Public Domain

text:
    STATE of Indiana ex rel. Stuart REED, et al., Relators, v. The CLAY CIRCUIT COURT, et al, Respondents.
    No. 11S00-1211-OR-639.
    Supreme Court of Indiana.
    Dec. 21, 2012.
   BRENT E. DICKSON, Chief Justice.

Relators, by counsel, have filed a petition for writ of mandamus and prohibition, seeking relief under the Rules of Procedure for Original Actions. A response in opposition to Relators’ petition has been filed by interested parties. Additionally, Relators have filed a motion seeking permission to file their tendered “Relators’ Reply to Response of ‘Interested Parties’ ” (“Reply”). The Court GRANTS Relators permission to file their Reply and directs the Clerk of Courts to show the Reply filed as of its date of tender, December 12, 2012.

Each member of the Court has had an opportunity to review and consider the materials filed in this original action and discuss the matter with the other members of the Court. Each member of the Court has voted to grant the writ.

Accordingly, the Court GRANTS the permanent writ in the following manner. Except with respect to any administrative tasks that may be necessary to effectuate this writ, the Hon. David R. Bolk shall cease exercising jurisdiction over this case, and the Hon. John T. Roach shall cease exercising jurisdiction predicated on his appointment as special judge by Judge Bolk on October 25, 2012. To select a new special judge in this matter, the Clerk of the Clay Circuit Court shall “select a special judge (on a rotating basis) from an alphabetical list of judges or magistrates eligible under Trial Rule 79(J) from counties within the Judicial Administrative District of which Clay County is a member.” See Clay County Local Rule LR11-TR79-01(A). Any judicial orders that may have been issued in this matter after the Hon. P.J. Pierson declined to accept appointment as special judge on October 17, 2012, are hereby vacated.

Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

The Clerk of the Supreme Court is directed to send a certified copy of this writ to the Hon. David R. Bolk; the Hon. John T. Roach; Victoria J. Wheeler, Clerk, Clay Circuit Court; Christopher B. Gambill and Noah L. Gambill, 416 S. Sixth Street, Terre Haute, IN 47807; Anthony Ratliff, 50 S. Meridian Street, Indianapolis, IN 46204; John H. Sharpe and Geoffrey Slaughter, One Indiana Sq., Suite 3500, Indianapolis, IN 46204; David F. McNa-mar, P.O. Box 53106, Indianapolis, IN 46253; and Jeffry A. Lind, 400 Ohio Street, Terre Haute, IN 47807. The Clerk of this Court is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: MATHIAS, Judge.

text:
    In re the ADOPTION OF S.W., Thomas West, Appellant-Respondent, v. Ronnie D. Sedberry and, Sondra A. Sedberry, Appellees-Petitioners.
    No. 34A04-1202-AD-77.
    Court of Appeals of Indiana.
    July 25, 2012.
    Ordered Published Oct. 2, 2012.

      Derick W. Steele, Deputy Public Defender, Kokomo, IN, Attorney for Appellant.
    Rakuya K. Trice, UAW Chrysler LLC Legal Services Plan, Kokomo, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Thomas West (“West”) appeals the order of the Howard Circuit Court granting the petition filed by Ronnie D. Sedberry and Sondra A. Sedberry (collectively “the Sedberrys”) seeking to adopt West’s biological daughter, S.W. On appeal, West claims that the trial court erred in concluding that West’s consent to the adoption was not required because of his failure to significantly communicate with S.W.

We affirm.

Facts and Procedural History

S.W. was born in March 2000 to Paige Ann (Pettit) Kelly (“Mother”), and West later executed an affidavit establishing his paternity of S.W. Approximately four months after S.W.’s birth, Mother was incarcerated and remained incarcerated until August 2005. Upon Mother’s incarceration, S.W. was entrusted to the care of Mother’s parents, the Sedberrys. The Sedberrys were appointed as S.W.’s legal guardians in May 2001.

A support order obliging West to support S.W. was never entered, and West never provided the Sedberrys with any financial support to assist them in raising his daughter. Like Mother, West used illicit drugs and alcohol on a regular basis and was employed sporadically as a dishwasher. West used cocaine, oxycodone, and marijuana.

The Sedberrys attempted to maintain a relationship between West and S.W. They arranged for West to visit S.W. at their home and on a few occasions even drove S.W. to West’s parents’ home to visit with West. Between 2000 and 2002, the Sedber-rys arranged for West to pick up S.W. for visitation, but West failed to show up, explaining that he was “too high” to visit with his daughter. Tr. p. 12. West’s failure to show up for these scheduled visits upset S.W. West never contacted the Sed-berrys after this to arrange further visitation.

Mother was released from incarceration in 2005, and sometime thereafter, the Sed-berrys’ son died. During the aftermath of her son’s death, Mrs. Sedberry let S.W. stay with Mother for approximately three months. During this time, West stayed with Mother occasionally as well. Then, in 2006, West was incarcerated as a result of his conviction for Class B felony burglary of the home of his own grandfather. West was sentenced in 2007 to twenty years executed. His projected release date is September 14, 2016, at which time S.W. will be sixteen years old.

In 2010, the Sedberrys again attempted to foster a relationship between S.W. and West. They purchased Thanksgiving, Christmas, and Father’s Day cards, had S.W. sign them, and sent them to West in prison. They even contacted West’s mother in an effort to have West’s family visit S.W. The Sedberrys also gave West’s mother S.W.’s identification documents so that S.W. could visit West in prison. After this, however, West’s family never contacted the Sedberrys to arrange to take S.W. to see West in prison. In 2010 and 2011, West’s parents did visit with S.W. a few times. However, after one of these visits, S.W. informed the Sedberrys that she did not feel comfortable during these visits, referring specifically to vulgar, inappropriate comments made by W.W., who is West’s son and S.W.’s half-brother. West’s mother stated that she was too physically ill to visit S.W. frequently.

On February 16, 2011, Mother died. On April 7, 2011, the Sedberrys filed a petition seeking to adopt S.W. In their petition, the Sedberrys alleged that West’s consent was not required because he had unjustifiably failed to communicate with S.W. for a period of one year even though he was able to do so. They also alleged that West had failed to provide support for S.W., was unfit to parent, and had abandoned S.W. prior to his incarceration. On April 19, 2011, West filed a motion to contest the adoption. The trial court held an eviden-tiary hearing on the matter on January 12, 2012. On January 17, 2012, the trial court issued findings of fact and conclusions of law granting the Sedberrys petition to adopt S.W. These findings and conclusions read in relevant part:

1. Thomas West and the late Paige Pettit are the natural parents of [S.W.], ... now eleven (11) years of age.
2. [S.W.] was born out of wedlock. [Westj’s paternity of [S.W.] was established by means of the parents’ execution of a paternity affidavit per Ind. Code section 16-37-2-2.1.
3. When [S.W.] was four (4) months old in July 2000, her mother Paige was incarcerated, and her father [West] was unable to assume care for the child. Maternal grandparents Ronnie and Sondra (“Sandy”) Sedberry assumed care and custody of [S.W.] beginning in July 2000.
4. In May 2001, Ronnie and Sandy Sedberry were appointed guardians of [S.W.].
5. [Mother] remained incarcerated in the Indiana Department of Correction[ ] for five (5) years, until she was released in August 2005.
6. While [S.W.] was being cared for by her grandparents and guardians the Sedberrys, [West] visited with the child two (2) or three (3) times, the last time when [S.W.] was about eighteen (18) to twenty-four (24) months old.
7. There were times when [West] made arrangements to come visit but did not show up, later saying that he was “too high”, and/or he was “in no condition to visit.” After sometime in 2002, Thomas did not show up for any further visits, and he did not contact the Sedberrys to schedule any visits.
8. In May 2002, [West] was convicted of Robbery, a C felony and sentenced to four (4) years, two (2) years executed with one (1) year to be served on in-home detention, followed by two (2) years on supervised probation.
9. [Mother] was released from the Department of Correction[] in August 2005, and she with her teenage son [J.Y.] maintained a residence at the Village Green Trailer Park in Kokomo. From late September to early December 2005, [S.W.] resided with [Mother] and [J.Y.] at Village Green for about three (3) months when the Sedberrys were in Arizona after their son died. After December 2005, [S.W.] resumed living with her grandparents and guardians, while visiting with [Mother] a few days at a time.
10. From August 2005 to May 2006, [West] stayed occasionally with [Mother] at Village Green, then at her home on Tomahawk Drive in Kokomo. [West] saw [S.W.] from time to time when the child visited with her mother and when [West] was at [Mother’s home.
11. During this time, [West] worked occasionally as a dishwasher at local Ko-komo restaurants. Also, during this time, [West] was using illegal drugs including oxycontin, cocaine, and marijuana. In August 2005, he pled guilty to conversion, received a suspended sentence of one year, and was ordered to complete drug treatment.
12. In April 2006, [West] was arrested on charges of burglary and theft. He posted bond two (2) days later, but in May 2006, he was arrested on additional charges of theft and burglary, and he remained in jail thereafter. In June 2006, he was charged with an additional count of theft.
13. In October 2006, [West] pled guilty to Burglary, a Class B felony, and the other pending charges were dismissed. He admitted to having burglarized his grandfather’s residence, taking items and pawning them for drug money-
14. In March 2007, [West] was sentenced to the Indiana Department of Correction[ ] for a period of twenty (20) years, all executed.
15. [West] has been continually incarcerated from May 2006 through the present. His projected release date is September 14, 2006. If [West] successfully completes the CLIFF program, he may be eligible for release sometime in 2015.
16. [West] last saw [S.W.] in late 2005 or early 2006, when the child was visiting her mother’s residence in Koko-mo.
17. Since incarcerated, [West] has sent [S.W.] letters and cards on occasion.
18. In 2010, Sandy Sedberry and/or [S.W.] sent [West] cards for father’s day, thanksgiving and Christmas.
19. In 2010, Sandy Sedberry contacted Judy Bagby, [Westjs mother, and offered to permit Judy and her family including [West]’s teenage son [W.W.] to visit [S.W.]. Subsequently, [S.W.] visited with the Bagbys several times. On one occasion in early 2011, [S.W.] talked with [West] on the telephone from the Bagby residence.
20. [S.W.]’s last visit with the Bag-bys took place in June 2011. After [S.W.] told Sandy [Sedberry] she did not enjoy the visits, Sandy would no longer agree to future visits.
21. In 2010, Sandy gave to Judy Bagby copies of [S.W.]’s identification card and birth certificate so Judy could take [S.W.] to see Thomas [in prison], Judy did not take [S.W.] to see [West] because of Judy’s health problems.
22. On February 16, 2011, [S.W.]’s mother Paige died.
23. Following their daughter’s death, Ronnie and Sandy Sedberry decided to pursue an adoption of [S.W.]. They filed the petition for adoption initiating this action on April 7, 2011.
24. In September 2011, the Sedber-rys with [S.W.] relocated to Arizona, while maintaining a residence in Koko-mo, Indiana.
25. [S.W.] is now eleven (11) years of age, and attending 5th grade.
26. Mr. and Mrs. Sedberry have been [S.W.]’s caregivers for more than ten (10) years, since the child was four (4) months old. They have been her legal guardians since the child was a year old.
27. The Sedberrys are seventy-one (71) and sixty-nine (69) years old respectively, and in good health. They have been married for forty-four (44) years. Neither has been convicted of a felony or misdemeanor offense relating to the health and safety of a child. They have sufficient ability and income to continue to raise [S.W.].
28. The Sedberrys have provided financial and emotional support, and have been the primary parental figures for [S.W.] since her birth.
29. After the Sedberrys filed their petition to adopt [S.W.], Thomas West filed a motion to contest the adoption on April 19, 2011. The court appointed the Howard County public defender to represent Thomas. Subsequently, ... a deputy public defender for Howard County entered his appearance and represented Thomas at the adoption hearing.
30. The court granted the Sedberrys’ motion to waive a home[-]study report since they are the child’s grandparents and have been her guardians since 2001. They filed confirmation that a criminal background report had been done showing no disqualifying criminal convictions.
31. A hearing on the petition for adoption was held on January 12, 2012. Thomas West was present in person, having been transported from the Department of Correction[ ], and by his court appointed counsel. After evidence was concluded, the court took the petition under advisement.
32. In their petition for adoption, the Sedberrys allege that the consent by Thomas West is not required. They claim that [West] abandoned the child, has not supported the child, and has made only token efforts to communicate with the child during her lifetime. The [Sedberrys] further claim that [West] is unfit to be a parent and the best interests of the child would be served if the court dispenses with [West]’s consent.
39. The court finds by clear, cogent and indubitable evidence that [West] has failed without justifiable cause to communicate significantly with his child [S.W.] for a period of at least one (1) year. During the period from [S.WJ’s birth in March 2000 to May 2006, [West’s] contacts and attempts to have contact with [S.W.] were token and insignificant. The contacts in 2001 and 2002 consisted of a few visits [West] had at the Sedberry home, thereafter, he stopped appearing for visits and did not schedule any visits. He had no contact from 2002 until August 2005, after [S.WJ’s mother Paige was released from prison, and she had [S.W.] with her for periods of time. Since May 2006, [West] has been incarcerated, and his only contacts with [S.W.] have been a few cards and letters, and one telephone conversation.
40. The court finds and concludes that the petitioners have proved by clear and convincing evidence that there have been periods of more than a year when [West] was not incarcerated and he did not have any significant contact with [S.WJ.
41. The court further finds and concludes that the petitioners have proved by clear and convincing evidence that [West] is unfit to be a parent to [S.WJ, and the best interests of the child would be served if the court dispenses with [West’s] consent.
42. Prior to his incarceration in May 2006, [West] has a substantial history of illegal drug use and committing crimes. Since May 2006, he has been incarcerated for committing burglary of his elderly grandfather’s home in a drug related crime. His current earliest release date from prison is September 16, 2016, when [S.WJ would be sixteen (16) years old.
43. It is well settled that individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children. Castro v. State Office of Family and Children, 842 N.E.2d 367, 374 (Ind.Ct.App.2006), trans. denied.
44. After [West’s] release from prison, there is no guarantee that he will be able to provide for [S.WJ or that he will ever obtain custody of her. [S.WJ’s needs for stability and permanence are too important to force her to wait until a determination can be made that [West] will be able to be a fit parent for her.
45. There is ample evidence to conclude that [S.WJ’s best interests are served by granting the Sedberrys’ petition to adopt her. Since [S.WJ was four (4) months old, the Sedberrys have been her primary care-givers and source of financial support. As grandparents and guardians, they have provided [S.WJ with stability and the nurturing care she requires. The court finds and concludes by clear and convincing evidence that it is in [S.WJ’s best interest that the Petition for Adoption be granted over the objection of [West],
46. Based on the foregoing findings and conclusions, the court finds and concludes that Thomas West’s consent to adoption is not required for the court to grant the Petition for Adoption, and his motion to contest the adoption should be and is denied.
47. The court further finds that all other requirements having been met, that the court should and does hereby enter a Decree of Adoption contemporaneously with these findings and this Order.

Appellant’s App. pp. 12-20. West now appeals.

Standard of Review

Upon review a trial court’s ruling in an adoption case, the appellant bears the burden of overcoming the presumption that the trial court’s decision is correct. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind.Ct.App.2009) (citing In re Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind.Ct.App.2008)), trans. denied. We will nei ther reweigh the evidence or judge the credibility of witnesses; instead, we will consider the evidence most favorable to the trial court’s decision, and the reasonable inferences to be drawn therefrom, to determine whether sufficient evidence exists to sustain the decision. Id. We will not disturb the trial court’s ruling unless the evidence leads to only one conclusion and the probate court reached an opposite conclusion. Id.

Where the trial court enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), we employ our familiar two-tiered standard of review: we must determine whether the evidence supports the findings and whether the findings support the judgment. Id. We will not set aside the findings or the judgment unless they are clearly erroneous. Id. Findings of fact are clearly erroneous if the record is devoid of any evidence or reasonable inferences to support them, while a judgment is clearly erroneous when it is unsupported by the findings of fact and the conclusions relying on those findings. Id.

Discussion and Decision

West claims that the trial court erred in granting the petition to adopt despite his objection and lack of consent to the adoption. Parental consent is generally required to adopt a child in Indiana. See Ind. Code § 31-19-9-1. However, consent to adoption is not required from any of the following:

(1) A parent or parents if the child is adjudged to have been abandoned or deserted for at least six (6) months immediately preceding the date of the filing of the petition for adoption.
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

(11) A parent if:

(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.

Ind. Code § 31-19-9-8(a). Subsection (b) of this statute further provides that “[i]f a parent has made only token efforts to support or to communicate with the child the court may declare the child abandoned by the parent.”

The provisions of this section are disjunctive, and any one provides independent grounds for dispensing with parental consent. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind.Ct.App.2010) (citing In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App.2006)), trams, denied.

West claims that the Sedberrys had the burden to prove the elements of section 31-19-9-8(a)(2) by “clear, cogent, and indubitable evidence.” See, e.g., In re Adoption of Augustyniak, 505 N.E.2d 868, 870 (Ind.Ct.App.1987) (holding that petitioner for adoption without parental consent bears the burden of proving the statutory criteria by “clear, cogent and indubitable evidence.”); In re Bryant, 134 Ind.App. 480, 493, 189 N.E.2d 593, 600 (1963) (same). However, in the case of In re Adoption of M.A.S., 815 N.E.2d 216, 219 (Ind.Ct.App.2004), this court examined the applicable law and pointed out that use of the “clear, cogent, and indubitable evidence” standard would create inconsistent burdens across the different statutory bases for adoption, given the 2003 amendment to the adoption statute. The court in M.A.S. held that the burden of proof for an adoption without consent, under any of the subsections in section 31-19-9-8, is that of “clear and convincing evidence.” 815 N.E.2d at 220; see also In re Adoption of M.B., 944 N.E.2d 73, 76-77 (Ind.Ct.App.2011); In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind.Ct.App.2010), opinion adopted, 941 N.E.2d 1042 (Ind.2011); D.C., 928 N.E.2d at 606; In re Adoption of H.N.P.G., 878 N.E.2d 900, 906 (Ind.Ct.App.2008); T.W., 859 N.E.2d at 1217 (all applying “clear and convincing evidence” standard).

West claims that the trial court’s finding regarding his lack of communication with S.W. was erroneous. West notes that the trial court acknowledged that he had some contact with S.W., and claims that he attempted further contact with S.W. but was thwarted by the Sedberrys and their frequent trips to Arizona. However, the Sedberrys were not required to prove that West had no communication with S.W. They had to prove that he, for a period of one year, “fail[ed] without justifiable cause to communicate significantly with the child when able to do so.” I.C. § 31-19-9-8(a)(2)(A) (emphasis added). Indeed, we have held that the purpose of this statutory provision is to “foster and maintain communication between non-custodial parents and their children, not to provide a means for parents to maintain just enough contact to thwart potential adoptive parents’ efforts to provide a settled environment to the child.” In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind.Ct.App.1999).

West’s infrequent and sporadic communication with S.W. is well established in the record. There was evidence indicating that West had only a few visits with S.W. after her birth and failed to appear for several scheduled visits. West had no contact at all with the child from 2002 until Mother was released from prison in 2005. After his incarceration in 2006, West had little communication with S.W. despite the Sedberrys willingness to let S.W. visit West in prison. Given this evidence, we cannot say that the trial court clearly erred in finding that West failed to communicate significantly with S.W. for over a period of one year even though he was able to do so. This was sufficient to establish that West’s consent was not required. See J.P., 713 N.E.2d at 876 (concluding that biological mother’s communication with daughter were not significant, and thus mother’s consent to adoption by foster mother was not required, where mother lived with her husband and child’s half-sibling in another state, traveled to Indiana at most once a month to visit with daughter for two to five hours and characterized these trips as “hardships,” and daughter’s reaction to these visits was not favorable).

West also claims that his mother had “significant and frequent” visits with S.W. To support his claim, he refers to the testimony of his mother. However, this is evidence which does not favor the trial court’s judgment, and we may not consider such on appeal. AS., 912 N.E.2d at 851. It has been held that visitation by paternal family members may constitute indirect communication by a non-custodial father. See In re Adoption of Thomas, 431 N.E.2d 506, 515 (Ind.Ct.App.1982). And there was evidence that West’s mother had some visitation with S.W. But the Sedberrys stopped the visits with West’s mother after S.W. stated that she was uncomfortable with the sexually suggestive talk by West’s son, W.W. And even after the Sedberrys provided West’s mother with copies of S.W.’s identification documents, she never followed through with the plan to take S.W. to visit West in prison. Considering only the facts favoring the trial court’s decision, we cannot say that it clearly erred by failing to consider West’s mother’s visits with S.W. as significant communication by West.

West also claims that the Sedber-rys failed to prove that he was able to communicate with S.W., and asserts that his lack of communication was “likely” due to the Sedberrys frequent and sometimes lengthy trips to Arizona. Not only is this speculative, but it again asks us to consider the evidence contrary to the trial court’s judgment. It is true that there was evidence that the Sedberrys visited Arizona quite often, and even moved there for approximately three years in beginning in 2004. But there is no evidence that they hid S.W. from West or his family. In this “communication age,” moving to another state does not make frequent communication with one’s child unduly burdensome or impossible. Moreover, West had no communication with S.W. after he stopped visiting her in 2002 and did not see her again until after Mother was released from prison approximately three years later. Thus, from some time in 2002 until the Sedber-rys moved to Arizona in 2004, S.W. lived with the Sedberrys in Kokomo, yet West made no effort to communicate or visit his daughter. In short, there was ample evidence that West had no significant communication with his daughter for a period of over one year, despite being able to do so.

In essence, West’s appellate argument is simply one that we consider evidence that does not favor the trial court’s decision, reweigh the evidence, assess the credibility of the witnesses, and come to a conclusion other than that reached by the trial court. This, of course, is contrary to the applicable standard of review.

Affirmed.

ROBB, C.J., and BAILEY, J., concur.

      . West testified that he could possibly be released in 2015 if completed the CLIFF (Clean Living is Freedom Forever) program.

      . In the portion of the trial court's findings omitted from the quote above, the court found that West’s failure to support S.W. could not be a basis for not requiring his consent to the adoption because there was no court order requiring West to pay child support. However, it is well settled that parents have a common-law duty to support their children even in the absence of a court order. In re Adoption of M.B., 944 N.E.2d 73, 77 (Ind.Ct.App.2011) (citing Boone v. Boone, 924 N.E.2d 649, 652 (Ind.Ct.App.2010)). The lack of a court order did not relieve West of his legal obligation to support his child. See id.

      . We also note that a parent's conduct after the petition to adopt was filed is "wholly irrelevant to the determination of whether the parent failed to significantly communicate with the child for any one year period.” In re Adoption of Subzda, 562 N.E.2d 745, 750 n. 3 (Ind.Ct.App.1990).

      . To the extent that West claims that his imprisonment made him unable to communicate with his daughter, the trial court correctly noted that those who “pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind.Ct.App.2006) (quoting In re A.C.B., 598 N.E.2d 570, 572 (Ind.Ct.App.1992)). Moreover, we would not necessarily hold an incarcerated parent to the same standard as a non-incarcerated parent when it comes to determining whether that parent’s communication with his or her child were significant. See Williams v. Townsend, 629 N.E.2d 252, 256 (Ind.Ct.App.1994) (Rucker, J., dissenting) (citing Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind.Ct.App.1986)). The evidence here, however, demonstrates that West had no significant communication with S.W. for over one year well before his incarceration and that this lack of significant communication continued after his incarceration.

      . We further note that the trial court also found that West was unfit to be a parent and that S.W.’s best interests would be served if West's consent were dispensed. See I.C. § 31 — 19—9—8(a)(l 1). This is a separate grounds for not requiring West’s consent to the adoption. See D.C., 928 N.E.2d at 606. However, West makes no argument that the trial court’s findings and conclusions are clearly erroneous with regard to his fitness as a parent. Thus, even if the trial court’s findings and conclusions with regard to West’s failure to significantly communicate were clearly erroneous, we would not reverse the judgment of the trial court.


author: BAILEY, Judge.

text:
    In the Matter of the ESTATE OF Nathaniel KAPPEL, Appellant-Cross-Appellee, v. William KAPPEL, Judith Kappel, and Mark Kappel, Appellees-Cross-Appellants.
    No. 32A01-1111-ES-526.
    Court of Appeals of Indiana.
    Oct. 30, 2012.

      Mark D. Gerth, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Appellants.
    Gregory W. Black, The Black Law Office, Plainfield, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

For more than forty years, brothers Nathaniel Kappel (“Nathaniel”) and William Kappel (“William”) were amicable partners in a farming operation, with each holding an insurance policy on the life of the other. Upon Nathaniel’s death in 2004, the attorney for the Estate of Nathaniel Kappel (“the Estate”) filed in the Hendricks Superior Court, probate division, a petition to marshal assets, seeking recovery of $750,000 insurance proceeds paid to William. William and his son, Mark Kappel (“Mark”), filed claims against the Estate, for $350,000 and $299,000, respectively, and William and his wife, Judith Kappel (“Judith”), filed a Complaint for Contribution as to a mortgage and taxes on the brothers’ farmland. The Estate counterclaimed, suing William and Judith for conversion. The Estate also sought a partnership accounting. The claims were consolidated and, at the conclusion of a bench trial, the probate court denied the Estate recovery of the insurance proceeds, directed William and Mark to withdraw their claims against the Estate, and denied the complaint for contribution. The Estate now appeals. We affirm.

Issues

The Estate presents four issues for review:

I. Whether the Estate is entitled to recover $750,000 in proceeds from a life insurance policy owned by William, insuring Nathaniel’s life;
II. Whether the Estate is entitled to recover the cash surrender value of a life insurance policy owned by Nathaniel, insuring William’s life;
III. Whether the probate court erroneously found the Estate counterclaim invalid for lack of requisite signatures; and
IV. Whether the Estate was entitled to a jury trial.

William, Mark, and Judith (“the Kap-pels”) cross-appeal, claiming entitlement to attorney’s fees.

Facts and Procedural History

On April 9, 1973, Nathaniel and William executed a “Partnership Agreement for Kappel Brothers” providing in relevant part:

Whereas, Nathaniel and William are partners doing business as brothers with Nathaniel owning a 50% interest and William owning a 50% interest in the partnership; and
Whereas, said parties desire to provide for the purchase by the surviving party of a deceased party’s interest in the business; and Whereas, the parties desire to provide for a method of evaluating the worth of the said business upon the death of the one of them first to die, to fix the purchase price to be paid for the interest of the party first to die, and the method of payment therefor.
Now, therefore, in consideration of the mutual agreements and covenants hereinafter set forth, the parties hereto mutually agree as follows:
1. The partnership agreement heretofore existing between the parties is hereby amended in the following particulars, and where the same is inconsistent herewith, the following provisions shall control.
2. During the continuance of this agreement, Nathaniel and William agree not to sell, transfer, encumber or assign any part of their respective interests in the partnership.
3. On the death of a party, the surviving party shall purchase the deceased party’s entire interest in the partnership business and the deceased party’s legal representative shall sell such interest to the surviving party. The purchase price of the partnership interest of the party first to die shall be computed in accordance with the provisions of Paragraph 4 hereof.
4. The parties hereto agree and stipulate that the total value of the partnership business as of the date of this Agreement is $100,000, and the value of each partner’s respective interest is: Nathaniel, $50,000; William, $50,000. Within 30 days following the end of each fiscal year of the partnership, the parties shall stipulate the value of said partnership business, and shall endorse such value on Schedule A attached hereto. If for any reason the parties shall have failed to stipulate the value for the year preceding the death of a party, the value of the partnership business shall be the higher of either of the following values:
(a) The last previously stipulated value; or
(b) The book value of the partnership as of the date of death. The determination of the accountant servicing the partnership business at the time of the death of a deceased party as to the book value shall be conclusive.
In no event, however, shall the value of the interest of the party first to die be less than the amount of the insurance proceeds of the policy on such deceased party’s life and subject to the terms of this agreement.
5. Nathaniel has made application for and is the owner of Policy # 78-245-473, issued by the Equitable Life Assurance Society of the United States in the face amount of $50,000, insuring the life of William. William has made application and is the owner of Policy # 73-256^104, issued by the Equitable Life Assurance Society of the United States in the face amount of $50,000, insuring the life of Nathaniel....
6. Each party agrees to apply the proceeds of the insurance policy owned by him to purchase the partnership interest of the deceased party as provided herein; said purchase to take place at the principal place of business of the partnership within 30 days of either (a) the date of the deceased party’s death or (b) the date of qualification of [the] deceased party’s legal representative, whichever is later.

(App. 33-34.) The agreement could be terminated only by written agreement of the parties; however, it could be altered or amended by a writing signed by the parties. In 1977, the brothers entered into a supplemental agreement, valuing the partnership by an additional $100,000 and listing two additional $50,000 life insurance policies. The brothers also purchased life insurance policies naming their wives as beneficiaries.

On December 18, 1998, Nathaniel executed his Last Will and Testament, reciting his intention to leave to his four children:

My interest in a certain partnership by and between myself and my brother, William M. Kappel, by Partnership Agreement dated April 1, 1973, including the proceeds of any life insurance provided to purchase my partnership interest pursuant to the terms of such Partnership Agreement;
My one-half (1/2) interest in a certain parcel of real estate consisting of approximately forty (40) acres and located at 10350 West Morris Street, Indianapolis, Indiana[.]

(App. 30.) In 1996, William purchased from State Life Insurance Company a policy on Nathaniel’s life, in the amount of $750,000 (“the State Life policy”). In turn, Nathaniel purchased from First Colony Life Insurance Company a policy on William’s life, also in the amount of $750,000 (“the First Colony policy”). The premiums were paid from a Kappel Brothers Partnership account.

Nathaniel, then aged seventy-six, suffered a heart attack and died on March 20, 2004. His wife and co-personal representative, Margaret Kappel (“Margaret”), listed the First Colony policy (insuring William’s life) as an asset of the Estate, but made the representation that she believed it had been cashed out in January 2004. Margaret (as opposed to Nathaniel’s sons) was by that time the beneficiary of the policy that had been in existence when Nathaniel made his 1993 will (“the Equitable 801 policy”). She did not list this policy as Estate property.

The attorney for the Estate contacted William in an effort to recover the $750,000 paid on the State Life policy insuring Nathaniel’s life. When informal recovery efforts were unsuccessful, the Estate filed its Petition to Marshal Assets. In turn, William and his family members filed claims against the Estate.

The probate court granted summary judgment to William and Mark on the claim that they, and not the Estate, were entitled to the proceeds of the State Life policy. On appeal, a panel of this Court reversed the grant of summary judgment, finding “there are numerous facts in dispute and the undisputed material facts are capable of supporting conflicting inferences with regard to the issue of who is entitled to the proceeds of the State Life policy.” In re the Estate of Nathaniel Kappel, No. 32A05-0904-CV-205, slip op. at 7, 2009 WL 3170644 (Ind.Ct.App. Mar. 11, 2010), trans. denied.

The matters were consolidated for a bench trial. At the request of the Estate, an accounting of the partnership was conducted. The probate court admitted extensive financial exhibits and expert testimony. The Estate did not challenge the accounting data. After the conclusion of the trial, the probate court entered its Findings of Fact, Conclusions of Law, and Judgment. The ninety-four page document includes findings of fact that may be summarized in relevant part as follows:

The brothers farmed together since the 1960’s, but the partnership was first formalized in a 1978 agreement, supplemented by a 1977 agreement. They did not hold the farmland as partners; rather, it was deeded to the men and their wives.

The brothers commingled personal and other assets to fund the business and such “resulted in no advantage or disadvantage to anyone.” (App. 321.) They filed individual tax returns and not partnership tax returns. Funds from the brothers’ construction business were also commingled with farm funds.

The 1973 partnership agreement “concerns but does not require insurance as funding the buyout of the interest in Kap-pel Brothers of the first brother to die.” (App. 322.) The document forbids transfer of ownership in Kappel Brothers to a third party.

Initially, the brothers valued the partnership at $ 100,000 and purchased a $50,000 life insurance policy on each brother’s life. The agreement contemplated that, upon death of one brother, the other would receive $50,000 and pay the personal representative of the deceased. The surviving brother would then be given the deceased’s interest in Kappel Brothers.

By June 1977, the brothers agreed the partnership was worth $200,000. The brothers purchased additional life insurance policies, Equitable 77 295 801 and 77 295 785, one for Nathaniel’s life, one for William’s life. The 1977 supplemental policy on Nathaniel’s life, although owned by William, named Nathaniel’s sons as the beneficiaries. Ownership of that policy was transferred from William to Nathaniel, and the named beneficiary was changed to Margaret.

In 1983 and in 1986, the brothers bought additional policies. The new policies were not “made part of the '73 agreement.” (App. 328.) The insurance purchases “coincided with the escalating amount of debt incurred by the brothers and their wives.” (App. 328.)

Nathaniel’s 1993 will, leaving his sons an interest in the farming partnership and proceeds of life insurance to purchase the partnership interest, was made when the Equitable 801 policy was in effect, and at a time when the partnership was losing money. Money was being borrowed on a regular basis.

In early 1996, the brothers acquired life insurances policies payable to the surviving brother on the death of one brother. “Nothing renders either policy governed or controlled by the 1973 agreement[.]” (App. 333.) “The buy sell feature referred to in the First Colony application was intended to save the estate of a deceased from paying debt. Were the deceased partner to have had net positive equity in the partnership at death, nothing in the 1996 policies would have prevented his estate from claiming that equity from Kappel Farms.” (App. 336.)

Insurance was also procured for the benefit of the brothers’ spouses. Partnership funds were used to pay various policies, whether personal or related to the partnership agreement.

In the years from 1996 through 2004, Kappel Farms lost over one million dollars.

In 2001, the brothers brought Mark on board as a one-third partner, “violating § 2 of the 1978 agreement” and providing evidence that the contract had been “abandoned.” (App. 341.) The name of the enterprise was changed from Kappel Brothers to Kappel Farms.

The brothers and their spouses had executed a 2004 promissory note for a business operating loan of $336,000. William and Judith had mortgaged their residence and obtained a personal line of credit to provide funds for the farming operations; the balance owed on the line of credit at Nathaniel’s death was $298,004.

From 1992 through 2004, the partnership borrowed $1,501,114. “[T]he insurance policies of 1996 were taken out to cover debt and cost of farming.” (App. 346.) As of Nathaniel’s death, the partnership owed $754,255 plus interest on bank loans. In addition, William and his son were responsible for “cost of crop,” which is “also known as total farm expense.” (App. 347.) The total of debt and cost of crop, as of Nathaniel’s funeral, was $ 1,585,504. $653,304 was recoverable from the State Life policy, and $96,409 from the First Colony policy (for a total of $749,713).

In March 2004, Nathaniel applied to liquidate the First Colony policy. He endorsed the check, and placed the $96,409 in the farm partnership account.

Accountants testified that the partnership had no worth at the time of Nathaniel’s death, “even given the value of equipment.” (App. 350.) The brothers’ insurance agent testified that the 1996 insurance was procured to allow payment of debt and continuation of farm operations in the event of death of one of the partners.

According to the 1973 agreement, Nathaniel’s heirs were to receive the greater of: the value of his partnership interest, the applicable insurance benefits, or the last stipulated value. Proceeds from the sole insurance policy applicable to the 1973 agreement (the Equitable 801 policy) were $53,069. The heirs were entitled to $53,069. Margaret received those benefits, but the Estate did not transfer Nathaniel’s interest in the partnership to William.

Based upon the findings of fact, the probate court entered conclusions of law, and, on alternate bases, denied the Estate recovery. The conclusions may be summarized in relevant part as follows:

Nathaniel’s will did not control any policy in the case because no policy named the Estate as a beneficiary.

The 1996 insurance policies were not governed by the 1973 agreement.

As of 2004, the brothers had abandoned the original partnership agreement, having conducted their business in a manner inconsistent with maintaining the agreement, for example, bringing in a new partner and failing to observe the formalities (valuation and listing of insurance policies) contemplated by the agreement.

The insurance policies referenced in the 1973 agreement no longer existed. The sole policy applicable (by reference in the supplemental agreement) was the Equitable 801 policy. Margaret had received the payout and the Estate’s remedy would lie, if at all, in seeking to recover those funds from Margaret.

The purpose of procuring the 1996 policies was not to provide benefits to heirs, but to allow the brother surviving after the other’s death to have funds for the escalating debt and cost of crops. William, left responsible for significant obligations of the partnership, received and used money for this purpose and did not convert funds, breach the partnership contract, or wrongfully withhold an asset of the Estate.

The Estate was not entitled to the proceeds of the First Colony policy, which Nathaniel had cashed-out shortly before his death to infuse additional funds into the partnership.

The Estate is liable for partnership debt as of 2004 and, based upon the accounting requested by the Estate, Nathaniel would have owed $268,248 at the time of his death. The Estate would be liable for that sum and also contribution to cost of crop, had not William and Mark expressed a willingness to withdraw claims against the Estate upon retention of the contested insurance policy proceeds. “The Estate has no money coming by reason of Nathaniel’s death, no interest or claim in or against Kappel Farms, under any measure.” (App. 872.)

The Kappels are not entitled to attorney’s fees for defending groundless claims.

The Estate’s counterclaim (to the complaint for contribution) was “improperly brought” and “also is inequitable.” (App. 389.)

Jury trial was denied because of the equitable nature of the petition to marshal assets, the complaint for contribution, and the necessity of an accounting and winding up of partnership affairs. “However one views the proceedings, the contentions, [and] the disputes, this litigation represents the probate accounting for a partnership in the process of dissolution, including the contested disposition of several insurance policies the partners purchased from 1973 through 1996.” (App. 391.)

The Estate appeals the denial of its claims for insurance proceeds. The Kap-pels cross-appeal the denial of attorney’s fees.

Discussion and Decision

Standard of Review

The Estate had the burden of proof at trial, and now appeals from a negative judgment; it may prevail on appeal only upon establishing that the judgment is contrary to law. Gates v. Houston, 897 N.E.2d 532, 535 (Ind.Ct.App.2008). The Estate must establish that the evidence is without conflict and leads to but one conclusion, which the trial court did not reach. Truck City of Gary, Inc. v. Schneider Nat’l Leasing, 814 N.E.2d 273, 278 (Ind.Ct.App.2004). We will neither reweigh the evidence nor judge the credibility of the witnesses, and will consider only the evidence most favorable to the judgment together with all reasonable inferences that may be drawn therefrom. Id.

Additionally, the probate court entered Indiana Trial Rule 52 findings and conclusions at the request of the Estate. Our standard of review when the trial court has set forth specific findings and conclusions at the request of a party is well settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Challengers must establish that the trial court’s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.

Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind.Ct.App.2005) (quoting Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001)), trans. denied.

The purpose of specific findings and conclusions is to provide the parties and reviewing courts with the legal theory upon which the trial court relied in reaching its decision. Balicki, 837 N.E.2d at 536 (citing Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 834 (Ind.Ct.App.2005), trans. denied). We may affirm a judgment on any legal theory, whether or not relied upon by the trial court, so long as the trial court’s findings are not clearly erroneous and support the theory adopted. Mitchell v. Mitchell, 695 N.E.2d 920, 923-24 (Ind.1998). “Where trial court findings on one legal theory are adequate, findings on another legal theory amount to mere surplusage and cannot constitute a basis for reversal even if erroneous.” Borth v. Borth, 806 N.E.2d 866, 870 (Ind.Ct.App.2004) (citing Roser v. Silvers, 698 N.E.2d 860, 863 (Ind.Ct.App.1998)).

State Life Policy

The Estate contends that the probate court erred in concluding that the $750,000 proceeds from the State Life policy is not property of the Estate. The State Life Policy was paid to William in accordance with the terms of that policy contract. However, the Estate claimed that William was obliged — pursuant to the 1973 contract between himself and his brother — to tender that amount to Nathaniel’s estate. According to the Estate, William’s failure to do so amounted to breach of contract and conversion.

The probate court was asked to determine whether the State Life Policy was encompassed by the 1973 agreement and, if so, whether the terms of that agreement required disgorgement of insurance proceeds to the Estate. The existence of a contract is a question of law. Batchelor v. Batchelor, 853 N.E.2d 162, 165 (Ind.Ct.App.2006). The basic requirements are offer, acceptance, consideration, and “a meeting of the minds of the contracting parties.” Id. However, the intention of the parties to a contract is a factual matter which must be determined from all the circumstances. Zimmerman v. McColley, 826 N.E.2d 71, 77 (Ind.Ct.App.2005).

“The abandonment of a contract is a matter of intention to be ascertained from the facts and circumstances surrounding the transaction from which the abandonment is claimed to have resulted.” Baker v. Estate of Seat 611 N.E.2d 149, 152 (Ind.Ct.App.1993). Abandonment may be inferred from the conduct of the parties, and a contract will be treated as abandoned when one party acts inconsistently with the existence of the contract, and the other party acquiesces. Id. Abandonment of a contract is a mixed question of law and fact; that is, what constitutes abandonment is a question of law and whether there has been abandonment is a question of fact. Id.

The probate court found that the brothers did not create and maintain a Schedule B to list insurance policies applicable to the 1973 agreement. Nor did they annually update the partnership valuation, as contemplated by the agreement. Significantly, they welcomed a third party in the farming operation. This was a clear violation of the 1973 agreement. However, both brothers were in accord. Based upon the foregoing facts, the probate court found the 1973 contract abandoned.

The Estate does not challenge the sufficiency of the evidence to support the probate court’s factual findings. Rather, the Estate reiterates its position that there was “evidence which established by a preponderance that the intent of Nathaniel and William in purchasing the 1996 life insurance policies was for the purpose of complying with the buy-sell provisions of the 1973 Partnership Agreement.” Appellant’s Brief at 6. Essentially, the Estate claims that there was conflicting evidence, but the probate court should have made a different finding as to intent to abandon. The Estate establishes no clear error.

First Colony Policy

The Estate also claimed that William and Judith had converted the proceeds of the First Colony policy. The trial court found that the Estate had presented no evidence and no theory to support such a claim.

Indeed, the evidence disclosed only that Nathaniel, shortly before his unexpected death, applied to liquidate the policy on William’s life. The check was received, endorsed, and deposited into the Kappel Farms account. By all indications, this was necessary to address the mounting losses of the partnership. Although Eugene Kappel testified that he did not recognize the signature on the insurance check as that of his father, he also testified that he was not alleging the instrument had been forged. Even assuming that Eugene did not, in fact, recognize the signature for some reason, his equivocal testimony does not provide evidence of conversion, much less point to clear error in the probate court’s judgment.

Defective Counterclaim

The Estate challenges the probate court’s conclusion that the counterclaim was defective because it was signed only by Donald Kappel and not by counsel for each of the co-personal representatives. The Estate strenuously argues that, although Donald Kappel signed the counterclaim, Margaret Kappel “ratified” the pleading by her lack of objection or motion to strike. Appellant’s Brief at 13. Nonetheless, the probate court decided, on the merits, that the Estate could not prevail on its counterclaim for insurance proceeds, and the findings and conclusions regarding a technical defect are mere surplusage. The Estate is not entitled to reversal on this basis. Borth, 806 N.E.2d at 870.

Right to Jury Trial

Finally, the Estate contends that the probate court erroneously failed to grant its motion for a jury trial pursuant to Indiana Trial Rule 38(A), which provides in relevant part:

Issues of law and issues of fact in causes that prior to the eighteenth day of June, 1852, were of exclusive equitable jurisdiction shall be tried by the court; issues of fact in all other causes shall be triable as the same are now triable.

Whether certain claims entitle a party to a jury trial presents a pure question of law. Lucas v. U.S. Bank, N.A., 953 N.E.2d 457, 460 (Ind.2011). We thus review the issue de novo. Id. The Indiana Constitution preserves the right to a jury trial only as it existed at common law, and a party is not entitled to a jury trial on equitable claims. Id. (citing Songer v. Civitas Bank, 771 N.E.2d 61, 63 (Ind.2002)). “Indiana Trial Rule 38(A) embodies this principle[.]” Lucas, 953 N.E.2d at 460. The inclusion of an equitable claim, without more, does not justify drawing the whole case into equity; rather, a court should look at the “essential features of a suit.” Id. at 461. If the lawsuit as a whole is equitable and the legal causes of action are not “distinct or severable,” there is no right to a jury trial because equity subsumes the legal causes of action. Id.

The Estate presents a cursory allegation that the relief it sought “was a money judgment which could be awarded in an action at law” and thus “the estate was entitled to have the counterclaim tied [sic] to a jury.” Appellant’s Brief at 13. The Estate cites a single case, Farrell v. Hunt, 189 Ind. 45,124 N.E. 745 (1919), but fails to develop a corresponding argument. Here, the parties’ dispute centered upon whether one brother had wrongfully appropriated funds belonging to the estate of the other, or whether those funds were properly used for payment of farming debt and expense. The dispute necessitated a partnership accounting to settle an estate, a matter entrusted to the probate court. The probate court found the action as a whole to be essentially equitable, and the Estate has presented no cogent argument to the contrary. Therefore, we deny the Estate’s request to remand the matter for a jury trial.

Attorney’s Fees

The Kappels claim that the probate court erred in refusing to order the Estate to pay attorney’s fees. Generally, Indiana follows the “American Rule” under which parties pay their own attorney’s fees unless an agreement between the parties, a statute, or other rule provides otherwise. Smyth v. Hester, 901 N.E.2d 25, 32 (Ind.Ct.App.2009) (citations omitted), trans. de nied. However, Indiana Code Section 34-52-1-1 (b) provides that a court “may award attorney’s fees as part of the cost ... if the court finds that either party” raised a “frivolous, unreasonable, or groundless” defense; persisted in litigation even after that defense “clearly became frivolous, unreasonable, or groundless;” or litigated in bad faith. The probate court found a lack of candor on the part of the Estate with regard to the Equitable 801 policy, but ultimately concluded that a statutory award of attorney’s fees was not appropriate.

A claim or defense is “frivolous” if it is taken primarily for the purpose of harassment, if the attorney is unable to make a good faith and rational argument on the merits of the action, or if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law. Kahn v. Cundiff, 533 N.E.2d 164, 167 (Ind.Ct.App.1989), aff'd, 543 N.E.2d 627 (Ind.1989). A claim or defense is “unreasonable” if, based on the totality of the circumstances, including the law and the facts known at the time of filing, no reasonable attorney would consider that the claim or defense was worthy of litigation. A claim or defense is “groundless” if no facts exist which support the legal claim presented by the losing party. Id. at 170-71.

A claim or defense is not groundless or frivolous merely because the party loses on the merits. Smyth, 901 N.E.2d at 33. Here, although the brothers amicably farmed together for four decades, they observed little formality in memorializing partnership affairs. The reasonableness of the Estate’s claims could not have been adequately discerned by a reasonable attorney absent a partnership accounting. The accounting was particularly challenging, in that it spanned a large segment of time. The evidence presented to the probate court, in large part, concerned the income, expenses, and net worth (ultimately found to be a negative net worth) of the partnership. It was only after the accounting evidence was fully presented that the lack of merit in the Estate’s claims was readily apparent. The Kappels have not persuaded us that they are entitled to attorney’s fees for bad faith litigation.

Additionally, the Kappels have requested appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E). “[A] discretionary award of damages has been recognized as proper when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind.1987). In considering a request for appellate attorney’s fees, we exercise extreme restraint because of the potential chilling effect upon the exercise of the right to appeal. Plaza Grp. Props., LLC v. Spencer Cnty. Plan Comm’n, 911 N.E.2d 1264, 1274 (Ind.Ct.App.2009), trans. denied. In the circumstances presented here, we find that the request for appellate attorney’s fees should be denied.

Conclusion

The probate court judgment denying the Estate recovery of insurance proceeds is not clearly erroneous. Nor is the refusal of the probate court to order the Estate to pay attorney’s fees erroneous.

Affirmed.

RILEY, J., and CRONE, J., concur.

      . The ownership of the land farmed by the brothers is not in dispute. At all times, the farmland (a 39-acre tract and a 75-acre tract) was deeded to Nathaniel, William, and their spouses. Prior to the bench trial, the 39-acre farmland in Hendricks County was sold, with proceeds to be distributed one-half to William and Judith, and one-half to the Estate (for distribution to Nathaniel's four sons). Nathaniel's interest in the 75-acre tract was devised to his surviving spouse, Margaret. Margaret is Nathaniel’s second spouse and not the mother of his sons.

      . By this time, the complaint for contribution had been settled out-of-court. Nonetheless, the probate court included it in the judgment.

      . The tort of civil conversion is the appropriation of the personal property of another to the offender’s own use and benefit, or its destruction, or the exercise of dominion over the property, in exclusion and defiance of the rights of the owner or lawful possessor, or withholding it from the owner's possession, under a claim and title inconsistent with the owner’s. Schrenker v. State, 919 N.E.2d 1188, 1194 (Ind.Ct.App.2010). trans. denied. The Estate's "conversion” claim is essentially that William had no entitlement to insurance proceeds because he was contractually obligated to surrender them to the Estate.

      . Inexplicably, the Estate also argues that "there was no evidence that, at the time of Nathaniel's death, any policies insuring Nathaniel and William existed except for the State Life and First Colony policies." Appel-lands Brief at 7. However, it is uncontrovert-ed that the Equitable 801 policy was in force and was paid to Nathaniel’s widow upon his death.


author: MAY, Judge.

text:
    Dennis LARSON, Rose Real Estate, Inc. and Diversified Commercial Real Estate, Appellants-Defendants, v. Peter N. KARAGAN, Appellee-Plaintiff. Rose Real Estate, Appellant/Counter-Plaintiff, v. Peter N. Karagan, Appellee/Counter-Defendant.
    No. 45A04-1112-CC-656.
    Court of Appeals of Indiana.
    Nov. 7, 2012.

      Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellants.
    Jospeh G. Bombagetti, Kelly Law Office, Crown Point, IN, Attorney for Appellee.
   OPINION

MAY, Judge.

Peter Karagan sued Dennis Larson, Rose Real Estate, and Diversified Commercial Real Estate (collectively, “Larson”) for breach of contract and conversion. Karagan moved for summary judgment and, after Larson did not respond to the motion, the court granted summary judgment for Karagan. On appeal, Larson argues genuine issues of fact precluded summary judgment and Karagan was not entitled to treble damages. On cross-appeal, Karagan argues he was entitled to prejudgment interest. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Karagan went to work for Dennis Larson’s real estate companies in September 2005. There was no written employment agreement, but the parties orally agreed Karagan would be paid seventy-five percent of the gross commissions Larson received for transactions Karagan procured. Karagan left employment with Larson on December 26, 2007. Larson did not pay Karagan the remaining commissions owed him, and Karagan sued for breach of contract. He moved for summary judgment, and Larson did not respond to his motion. The trial court granted summary judgment for Karagan. It denied Larson’s motion to correct error.

Karagan then submitted two Requests for Admission of Fact, neither of which Larson answered. The trial court granted Karagan’s motions that the requests be deemed admitted. The trial court held a damages hearing, where Larson filed a motion to permit withdrawal of admissions. The trial court permitted withdrawal of Larson’s second admission number ten. After a subsequent damages hearing, the trial court found Karagan was entitled to treble damages and awarded him $177,612.50 plus costs and future commissions Larson would receive on certain transactions. It denied Karagan’s request for prejudgment interest.

DISCUSSION AND DECISION

The standard of appellate review of a summary judgment motion is the same as that used in the trial court. Hardy v. Hardy, 968 N.E.2d 470, 473 (Ind.2012). Summary judgment is appropriate only “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Ind. Trial Rule 56(C)). We construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, and our review is limited to the materials designated to the trial court. Id. We carefully review a decision on a summary judgment motion to ensure that the losing party was not improperly denied his day in court. Id.

When a nonmoving party does not respond to a summary judgment motion within thirty days — by filing a response, requesting a continuance under T.R. 56(1), or filing an affidavit under T.R. 56(F) — the trial court cannot consider summary judgment filings that party subsequently makes. Miller v. Yedlowski, 916 N.E.2d 246, 247 (Ind.Ct.App.2009), trans. denied.

A party who moves for summary judgment bears the risk that the court will enter summary judgment in favor of the non-moving party, even when the non-moving party has not filed a cross-motion for summary judgment or otherwise responded to the summary judgment motion. Murphy v. Curtis, 930 N.E.2d 1228, 1233 (Ind.Ct.App.2010), trans. denied. A trial court is not required to grant an unopposed motion for summary judgment; summary judgment is awarded on the merits of the motion, not on technicalities. Id. See T.R. 56(C) (“[sjummary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits of evidence, but the court shall make its determination from the evidentia-ry matter designated to the court”). While a party who does not respond to a motion for summary judgment may be limited to the facts established by the mov-ant’s submissions, such failure to respond does not preclude argument of the relevant law on appeal. Murphy, 930 N.E.2d at 1234.

We must therefore determine whether Karagan’s own designated evidence gives rise to a genuine issue of material fact that precludes summary judgment. It does not.

1. Genuine Issue of Fact

Larson argues Karagan’s own designated evidence gives rise to a factual dispute about the terms of Karagan’s oral contract:

At the time of his departure, the parties disagreed as to when and how commissions were to be paid_Stated different, [sic] the payments owed by [Larson] may end on the day he left employment or some time later based on work in process, which would be days, weeks, or months after Karagan separated from employment.

(Appellant’s Br. at 16-17.) As Larson’s admissions indicate there was no such factual dispute, summary judgment was appropriate.

Under T.R. 36, the failure to respond in a timely manner to a request for admissions causes those matters to be admitted and conclusively established by operation of law. City of Muncie v. Peters, 709 N.E.2d 50, 54 (Ind.Ct.App.1999), reh’g denied, trans. denied. Requests for admissions under T.R. 36 may, in addition to addressing evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the ease. Id. Matters admitted under the rule are deemed conclusively established, eliminating the need to prove them at trial. Id.

However, a party who made admissions by failing to respond may move to withdraw those admissions pursuant to T.R. 36(B). Id. The trial court may grant a motion to withdraw admissions if it determines: (1) withdrawal or amendment will subserve the presentation of the merits, and (2) prejudice in maintaining the action or defense will not result to the party that obtained the admission. Id. The party seeking withdrawal has the burden of demonstrating the presentation of the merits will be subserved by withdrawal, and the party who obtained the admissions has the burden of demonstrating it will be prejudiced if the trial court permits withdrawal. Id.; T.R. 36(B). Even if both of these conditions are satisfied, the rule does not compel the trial court to grant a request to withdraw admissions; rather, the court may, in its discretion, permit withdrawal. Peters, 709 N.E.2d at 54-55. We will reverse the grant or denial of a motion to withdraw admissions only for an abuse of discretion. Id. at 55.

Karagan’s first request for admissions listed ten transactions for which Larson had received or was due to receive commissions. The second set of admissions indicated Karagan “fulfilled all the requirements ... to be paid “pursuant to the 75%/25% compensation agreement” for those transactions. (App. at 299-301.) Larson did not respond and the requests were deemed admitted. In light of those admissions we cannot find error to the extent the trial court determined there was no genuine issue of fact as to the interpretation of the parties’ oral agreement. Summary judgment for Karagan was not error.

2. Treble Damages

Larson next argues there was no evidence of criminal intent to support the application of the criminal conversion statute that was the basis of the award of treble damages to Karagan. There was ample evidence to permit treble damages pursuant to the statute.

Ind.Code § 34-24-3-1 provides in pertinent part:

If a person has an unpaid claim on a liability that is covered by IC 24-4.6-5 or suffers a pecuniary loss as a result of a violation of IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9, the person may bring a civil action against the person who caused the loss for the following:
(1) An amount not to exceed three (3) times:
(A) the actual damages of the person suffering the loss, in the case of a liability that is not covered by IC 24-4.6-5; or
(B) the total pump price of the motor fuel received, in the case of a liability that is covered by IC 24 — 1.6-5.
(2) The costs of the action.
(3) A reasonable attorney’s fee.

(Footnote added.) This statute is sometimes referred to as the “Indiana crime victim’s relief act.” Gilliana v. Paniaguas, 708 N.E.2d 895, 899 (Ind.Ct.App.1999), reh’g denied, trans. denied. It permits a person who has suffered a pecuniary loss as a result of a criminal conversion to bring a civil action to recover the loss. Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 766 (Ind.Ct.App.2003). Unlike in a criminal trial, a claimant need prove by only a preponderance of the evidence that the defendant committed the criminal act. Id. A conviction of conversion is not a condition precedent to recovery in a civil action brought under the crime victim’s relief act, id., but the claimant must prove all the elements of the criminal act. Id.

In any criminal conversion action, criminal intent must be proven. Id. It is this mens rea requirement that differentiates criminal conversion from the more innocent breach of contract or failure to pay a debt — situations the criminal conversion statute was not intended to cover. Id.

Karagan had to prove by a preponderance of the evidence Larson acted knowingly or intentionally. Ind.Code § 35-43-4-3. “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind.Code § 35-41-2-2. “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Id. In the case of conversion, the claimant must prove the control exercised over the property was unauthorized, Midland — Guardian Co. v. United Consumers Club, Inc., 499 N.E.2d 792, 797 (Ind.Ct.App.1986), reh’g denied, trans. denied, and the accused was aware of a high probability the control was unauthorized. Id. at 798.

Karagan did so prove. In White v. Indiana Realty Associates II, 555 N.E.2d 454, 458 (Ind.1990), our Indiana Supreme Court addressed “the rare situation in which criminal intent may be found in a civil action through summary judgment.” In a landlord-tenant civil dispute, the Court found White, Indiana Realty’s tenant, violated “the criminal provisions of Ind. Code § [sic] 35-43.” Id. at 455. Indiana Realty sought treble damages in its action against White and moved for summary judgment. White, like Larson in the case before us, did not file affidavits or even respond to the complaint. The trial court granted summary judgment for White and we affirmed.

Our Supreme Court first noted it will be a rare landlord-tenant dispute that “presents sufficient evidence of criminal intent to warrant treble damages and fees under Ind.Code § 34-4-80-1. Moreover, it is even less likely that the proof of criminal intent will be so strong that there is no genuine issue of material fact, warranting summary judgment.” Id. at 456. It further noted “all the alleged criminal acts include the element of mens rea or criminal intent, and Indiana Realty must carry the burden of proving it.” Id. at 457.

But Indiana Realty was able to prove criminal intent. It presented:

the following uncontroverted facts which we conclude were adequate to establish White’s criminal intent in violation of one of the criminal acts alleged in the complaint:
1) On December 4, 1985, the trial court entered a final judgment for damages and possession in favor of Indiana Realty-
2) Two days after White was directed by the court to transfer possession to Indiana Realty, she initiated a federal bankruptcy action which arguably lacked any substantive legal merit. White voluntarily moved to dismiss the suit. She continues to assert however, that the suit stayed any municipal court proceeding.
3) White retained possession until April 10, 1986, more than four months after the date set by the trial court for transfer of possession.
4) Throughout this four-month period, White both refused to vacate the apartment, and refused to pay any rent. As White’s attorney admits, “Nancy White does not dispute her owing rental from December 8, 1986 through April 9, 1986.”

Id. at 457-58 (footnotes omitted). The Court determined:

[T]he extremely aggravated action by the tenant and her approach to the litigation persuade us that summary judgment was appropriate. In the face of two affidavits supplied by Indiana Realty which outlined White’s lengthy holdover beyond the trial court’s order to vacate in December 1985 and her effort to use the bankruptcy system to retain possession of what was Indiana Realty’s property, White neither supplied counter-affidavits nor even an answer. In a sense, she did even less than “rest upon the mere allegations or denials of her pleadings.” Ind. Trial Rule 56(C). The facts of this case present the rare situation in which criminal intent may be found in a civil action through summary judgment.

Id. at 458.

The case before us is similar. Karagan moved for summary judgment and Larson did not respond. .Karagan requested admissions, twice, and Larson did not respond. The statements that were accordingly deemed admitted show Larson had or was due the commissions for the listed transactions, and that Kara-gan had fulfilled all the conditions to be paid the commissions pursuant to the parties’ agreement. At the damages hearing Larson testified he had between $40,000 and $45,000 that was due Karagan. Larson’s principal broker testified that in her experience, if transactions were not yet closed when an agent left, the agent was still entitled to receive the commissions. But Karagan’s commissions were withheld and he testified he had gone without the money for “over two years ... more like three years.” (Tr. at 100.) As Karagan demonstrated Larson was aware of a high probability its control over Karagan’s property was unauthorized, we cannot say the trial court erred in determining Kara-gan was entitled to treble damages.

3. Prejudgment Interest

On cross-appeal, Karagan argues the trial court should have awarded him prejudgment interest. We review Karagan’s claim for prima facie error, as Larson did not file a reply brief to address this issue. See Reid v. State, 883 N.E.2d 872, 873 (Ind.Ct.App.2008) (noting the defendant did not respond to the State’s allegation on cross-appeal and accordingly we would review for prima facie error).

The trial court determined Karagan was not entitled to prejudgment interest because “[t]he damages were not sufficiently fixed and ascertainable to support the assessment of prejudgment interest.” (App. at 19.) An award of prejudgment interest is founded on the theory that there has been a deprivation of the plaintiffs use of money or its equivalent and unless interest is added, the plaintiff cannot be fully compensated for his loss. Id. Prejudgment interest is recoverable not as interest but as additional damages to accomplish full compensation. Id.

Damages in the form of prejudgment interest are warranted in a contract case if the terms of the contract make the claim ascertainable and the amount of the claim rests on mere computation. Id. Prejudgment interest may be trebled. See Midland-Guardian Co., 499 N.E.2d at 800 (“[s]ince prejudgment interest was properly an element of the actual damages in this case, and since [the crime victim’s statute in effect when Midland-Guardian was decided] mandates trebling actual damages, there was no error in trebling the interest”).

Karagan has made a prima facie case prejudgment interest should have been awarded. An award of prejudgment interest is proper when the trier of fact does not have to exercise judgment in order to assess the amount of damages. Kummerer v. Marshall, 971 N.E.2d 198, 201 (Ind.Ct.App.2012). Examples of cases where prejudgment interest is appropriate include those for breach of contract when the damages were principal payments made under a promissory note, the amount of a mechanics’ lien for a contractor’s unpaid bills for a remodeling project, and an amount stipulated to at a damages hearing. In such cases the amount of damages is clear and does not require any interpretation or judgment on the part of the trier of fact.

The same is true when, as in the case before us, the amount of unpaid commissions is clear. In Kopka, Landau & Pinkus v. Hansen, 874 N.E.2d 1065, 1074 (Ind.Ct.App.2007), the damages were complete and ascertainable when Hansen sought the amount of business development commissions he was owed when he resigned. “The trial court did not have to exercise its judgment to assess the amount of damages. Consequently, prejudgment interest is proper as a matter of law and we remand this matter to the trial court for a calculation of the amount of prejudgment interest to which Hansen is entitled.” Id.

In the case before us the evidence, including Larson’s admissions, established what Karagan’s commission agreement was, the transactions for which he was entitled to commissions, and the amount of the commissions. The trial court therefore should have awarded Karagan prejudgment interest, see, e.g., Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140-41 (Ind.Ct.App.2002) (Ward entitled to prejudgment interest when undisputed evidence showed “Noble Roman’s stipulated to the amounts of the majority of the damages the Wards requested” such that court was not required to exercise any discretion to determine stipulated amount). We remand for it to do so.

CONCLUSION

The trial court properly granted summary judgment for Karagan, and its award of treble damages was not error. However, it should have awarded Karagan prejudgment interest. We accordingly affirm in part, reverse in part, and remand for calculation of the amount of prejudgment interest to which Karagan is entitled.

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and KIRSCH, J., concur.

      . The trial court so found. Karagan refers in his affidavit to "an oral compensation agreement wherein I received 75% of the gross commissions generated on all transactions in which I was listed as the associate broker, sales agent, leasing agent, or listing agent.” (App. at 77.) Larson, in an interrogatory, said in reference to the "rate of compensation [Karagan] was to receive” that he and Kara-gan "verbally agreed to 75% of real estate commission earned and collected on behalf of the company while he was licensed here.” (Id. at 65.)

      . That admission was:
      That with regard to the Hickory Plaza transaction, Peter Karagan fulfilled all requirements or conditions precedent, including procuring, if necessary, a ready, willing, and able purchaser or lessee, for him to be paid pursuant to the 75%/25% compensation agreement.

        (App. at 310.) The trial court found Karagan was not entitled to a commission from that transaction.

      . As noted above, Larson moved to withdraw the admissions. The motion was denied except as to admission number ten, which addressed a transaction where Larson alleged Karagan “had nothing whatsoever to do with the transaction in question, and thus [Larson] should have no liability whatsoever to [Kara-gan] on that particular count.” (App. at 317.) That evidence does not reflect there is a genuine issue of fact as to the interpretation of the compensation agreement, which is the only issue of fact Larson asserts on appeal. Nor did the trial court find Karagan entitled to a commission on that transaction.

      . It appears Karagan was awarded treble damages pursuant to Ind.Code § 35-43-4-3: "A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.” The trial court noted in its judgment that Karagan’s complaint alleged breach of contract and conversion.
      Larson states "[t]he criminal act that Kara-gan utilized for treble damages and an attorney fee award,” (Appellants’ Br. at 13) was "Ind.Code § 35-43-4-3(a).” (Id. at 14.)
      There does not appear to be any such statute in the Indiana Code. Nor does the page of the appendix to which Larson directs us include a reference to any such statute.

      . That article addresses criminal conversion and trespass. Trespass was the issue in White.