Ace Chester v. Kye Kellems, Tye Doenges, and Sky Chester (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 15, 2016
• Docket: 02A03-1506-PL-740
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 15 2016, 9:19 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT APPELLEES PRO SE Robert Owen Vegeler Tye Doenges Vegeler Law Office LLC Fort Wayne, Indiana Fort Wayne, Indiana Kye Kellems Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ace Chester, March 15, 2016 Appellant-Plaintiff, Court of Appeals Case No. 02A03-1506-PL-740 v. Appeal from the Allen Superior Court Kye Kellems, Tye Doenges, and The Honorable Sky Chester,1 Craig J. Bobay, Judge Appellees-Defendants. Trial Court Cause No. 02D02-1406-PL-223

1 Defendant Sky Chester received a directed verdict in her favor at trial, which Ace Chester does not appeal. However, we include her in the caption because, pursuant to Indiana Appellate Rule 17(A), a party in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 1 of 12 Kirsch, Judge.

[1] Ace Chester (“Chester”) filed suit against his three sisters to recover items of

personal property alleged to be in the sisters’ possession or destroyed by them,

as well as to recover monetary damages. Following a bench trial, the trial court

found in favor of Chester in part and in favor of the sisters in part. Chester

appeals raising four issues that we consolidate and restate as: whether the trial

court’s decision was contrary to law.

[2] We affirm.

Facts and Procedural History [3] Chester has three sisters, Kye Kellems (“Kye”), Tye Doenges (“Tye”), and Sky

Chester2 (“Sky”) (collectively, “the Sisters”). Their parents (“Father” and

“Mother”) owned two neighboring parcels of real property located in Allen

County, Indiana: 6016 East Dupont Road (“the 6016 Property”) and 6138 East

Dupont Road (“the 6138 Property”). Prior to Father’s death in 1992, Chester

rented and lived in the residence on the 6016 Property for thirteen years, but

upon Father’s death, Chester moved in with Mother at her residence at the

6138 Property. In 2004, Mother transferred ownership of the 6016 Property to

2 Sky at all times relevant to this action lived in Florida; Tye and Kye lived in Fort Wayne, Indiana.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 2 of 12 Kye, and in 2006, Mother transferred ownership of the 6138 Property to Kye.3

Tr. at 72-73, 81-82; Chester Ex. 18.

[4] The relationship between the parties can be described as contentious, at best.

Over the years, law enforcement has been involved, as well as the courts;

multiple protective orders and small claims actions have been filed, prior to

Chester’s complaint giving rise to this appeal.4 The record before us reflects,

among other things, that Kye filed a small claims action in November 2011

against Chester, alleging that he stole, sold, or otherwise disposed of personal

property before their Mother’s death in late December 2011. Chester was

ordered in December 2011, via a protective order, to stay away from Kye’s

residence and place of employment for two years. Appellees’ Ex. E. As part of

Kye’s small claims action, the court, in January 2012, issued an order stating

that Chester had “seven days to vacate the premises” and was to take “only his

items of personal property.”5 Appellees’ Ex. F. In June 2012, the small claims

court issued an order on Kye’s complaint and found, “The Court is unable to

3 The 6138 Property consisted of approximately three acres and a residence. A 1994 Last Will and Testament had provided that the three acres was devised to the Sisters and that Chester received a life estate in the home located on that property. Chester Ex. 5. Subsequently, in 2006, Mother quitclaimed the 6138 Property to Kye. 4 The trial court in this case observed, “The police have been involved in disputes between the parties and this is at least the third time the parties have been involved in litigation against each other.” Appellant’s App. at 7. 5 The Sisters state in their brief that they were “locked out” of the 6138 Property “from 11/1/2011 to 1/26/2012 when Sheriff of Allen County got there [and] had to help cut open door on 1/26/12.” Appellees’ Br. at 6.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 3 of 12 distinguish what property was owned by whom” and “the Court cannot assess

any damages to either party.” Appellees’ Ex. H.

[5] In June 2014, Chester filed a complaint against the Sisters, alleging, in part, that

upon Mother’s death, the Sisters “took, hid, disposed of, sold or otherwise

unlawfully detained and kept possession of [Chester’s] personal property set

forth in Exhibit A[.]” Appellant’s App. at 7.6 The attached Exhibit A listed 497

items of personal property that he claimed the Sisters took, disposed of, or

retained. He also claimed, “This action is brought in conjunction with I.C. §

34-11-2-7 for actions for damages for detention of personal property and for

recovery of possession of personal property.” Id. He stated that he attempted

to recover the items of personal property on “numerous occasions” but the

Sisters “refused” the attempts. Id. Chester also sought recovery of attorney’s

fees.

[6] The trial court held a bench trial in February 2015. At trial, Chester testified

that he took care of their Mother, attending to her health needs, since the end of

2006, early 2007, until her death in December 2011. Chester presented at trial

the list of the 497 items that had been attached to his complaint (“Exhibit 3”).

He testified that it represented his property that he acquired “over thirty year’s

time.” Tr. at 16. He compiled it “from [his] memory,” later explaining that he

6 A copy of the complaint is not included in the record before us. The trial court, in its judgment and order, cited to some of the allegations made by Chester in his complaint, and we rely on the trial court’s recitation of those allegations. Appellant’s App. at 7.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 4 of 12 was able to do so from memory because “I’m the one who bought [the items] . .

. or traded or swapped them.” Id. at 17, 43. He testified that he purchased

many of the items at auctions, antique shows, and garage sales, and others he

swapped for services or acquired them through trade. He placed values on

some or all of the items, explaining that his values were based on his

experience, as well as using the figures he paid for them at the time of purchase

at an estate sale or the like. Chester also submitted a separate exhibit, reflecting

the “most important and likely the most valuable” items from the Exhibit 3 list

(“Exhibit 16”). Id. at 29. Chester stated that, when he left the premises in

January 2012, he took only three items of personal property. Id. at 35.

[7] In support of Chester’s ownership of the 497 items and his valuations of them,

Chester first called as a witness his friend Anthony Klemm, who throughout the

years went with Chester to auctions, helped Chester “haul the stuff,” and they

made improvements to their homes together. Id. at 47. For the same reason,

Chester also called Edward Schneider, who over the years attended antique

shows and garages sales with Chester and bought and sold antiques and

personal property. He testified to Chester’s ownership of the items and that

Chester’s fair market valuations were reasonable and accurate. Chester’s friend

Ernest Nicole, who with Chester would go to garage sales and the like to barter,

swap, and trade items, testified likewise. Chester’s “very dear good friend”

Jeannie Schlegel testified to her familiarity with the items and Chester’s

ownership of them. Id. at 60. Among other witnesses, Chester also called Kye.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 5 of 12 [8] Kye testified that there are some vehicles, built in the 1940s -1970s, sitting on

the property, which belong to Chester, but other than those vehicles, the other

items of personal property listed on Chester’s Exhibit 3 are not at either the

6138 Property or the 6016 Property. She testified that, when she got possession

of the 6138 Property in January 2012, “the house was pretty much empty,” and

“Chester had been removing items.” Id. at 76. She noted, however, that she

had no idea what was in the barn on the property, because it “has been falling

down since 2001 . . . It is a dangerous place and I’m not going to try to crawl in

there and figure out what is in there until I can have it taken down properly.”

Id. When questioned about specific items that Chester listed on his Exhibit 16,

she testified that they were not on the premises. Id. at 77-79. However, as to

two 1950s boats that Chester named in Exhibit 16, she testified that “those were

estate boats,” and an oval table on the Exhibit was also an estate item. Id. at

78-79. According to Kye, when, as part of Mother’s estate auction, personnel

came to assess and value estate items, “[Chester] had already removed . . .

$55,000 worth of [estate] property.” Id. at 82. Kye testified that she did not

take or dispose of the 497 items listed on Chester’s Exhibit 3. Id. at 85, 88.

Contrary to Chester’s claims that he cared for Mother, Kye testified that she

cooked and fed Mother daily, bought supplies, and bathed her three times per

week, and she presented two witnesses to testify to her care for Mother.

[9] Also as part of their case-in-chief, the Sisters called, among others, Ronald

Richardville, who since 1988 lived in a home across the road from the 6138

Property. He testified that the pole barn, which he had entered at some prior

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 6 of 12 time, began falling apart by 2000. He testified that the barn never had a door,

only carpeting hanging over the door like a cover, but had since fallen down,

and it has dirt floor. He testified that the Chevy Nova vehicles, appearing on

Chester’s Exhibits, had been in the barn since before 1988, and the 1972 pickup

on the Exhibit list “is sitting beside the barn,” as was a Ford wrecker listed on

the Exhibits. Id. at 99. Richardville testified that the roof of the barn has totally

fallen in and “is laying flat.” Id. at 100. The Sisters presented photographs of

some of the vehicles that Chester listed on his Exhibit 3, and as the trial court

observed, the 1962 Chevy has “a tree growing on the back hood if it[.]” Id. at

112.

[10] In order to contradict Chester’s claim that all 497 items listed on his Exhibit 3

were his personal property, the Sisters also presented old family photographs,

which were admitted as evidence, to show that various items of personal

property – which appeared on Chester’s Exhibit 3 – had been in the family for

decades and thus were not purchased or acquired by Chester, but were instead

estate property. The Sisters conceded that Chester owned thirty-two of the 497

items found on his Exhibit 3, and the Sisters submitted a list identifying those

thirty-two items (“Exhibit GG”), which included five vehicles that were either

sitting on the property or in the barn. Appellant’s App. at 116; Tr. at 134. As to

the other items in Exhibit GG, Tye explained, “We might not know where they

are or if they exist, but yes, they are not ours or the estate’s.” Tr. at 119.

[11] Chester called as a rebuttal witness, Jeannie Schlegel, who testified that she was

present with Chester when he was ordered to leave the 6138 Property on

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 7 of 12 January 20, 2012, and that, contrary to the Sisters’ claim, the house was not

almost empty and was “fairly full of furniture,” including items on Chester’s

Exhibit 3. Id. at 141.

[12] At the conclusion of all of the evidence, Sky moved for a directed verdict as to

Chester’s claims against her, asserting that there had been no evidence

presented that she had any involvement or association with the disputed items

of personal property, and the trial court granted her motion at that time. After

taking the matter under advisement, the trial court, on May 26, 2015, issued its

order and judgment. It determined that the thirty-two items found in Exhibit

GG “are the personal property of [Chester],” but found that the values of those

items was “so speculative and so uncertain” that the trial court did not grant a

money judgment; rather, it ordered that Chester was to recover possession of

those items. Appellant’s App. at 9. With regard to all the other items on

Chester’s Exhibit 3 list, the trial court determined:

[Chester] has failed to prove by a preponderance of the evidence that: those items of personal property still exist; that those items are in possession of Kye or Tye; that those items were ever in the possession of Kye or Tye; that [Chester] owned the items; and/or that those items actually have any value.

Id. Although the trial court determined that some items were Chester’s, namely

the thirty-two items identified in Exhibit GG, the trial court denied Chester’s

request for treble damages and attorney’s fees, concluding that the actions of

Kye and Tye did not rise to the level of conduct to merit such an award.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 8 of 12 [13] In June 2015, Chester filed a Motion for Relief from Order and Judgment,

which the trial court denied in July 2015. Chester filed a motion to reconsider,

which, after a hearing, the trial court denied in August 2015. The trial court

ordered that Chester had “until September 12, 2015 to retrieve the personal

items designated in the Court’s 5/26/15 Order[.]”7 Appellant’s App. at 4.

Chester now appeals.

Discussion and Decision [14] On appeal, Chester asserts that at trial he established: (1) he was the owner of

the 497 items of tangible personal property; (2) the fair market value of each of

the items; and (3) he did not receive possession of 494 of the 497 items, having

removed only three of the items on the list. He claims that, having proven the

above, the trial court should have entered an order requiring all items be

returned to him or requiring the Sisters to reimburse him for the fair market

value of the missing items.

[15] Although the trial court entered findings of fact and conclusions thereon, the

record does not reflect a request for such findings by either party. Where the

trial court enters specific findings of fact and conclusions sua sponte, we apply

the following two-tiered standard of review: whether the evidence supports the

findings, and whether the findings support the judgment. Fowler v. Perry, 830

7 The Sisters assert on appeal that “[Chester] received [the] items that he could establish [were his] and existed.” Appellees’ Br. at 2.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 9 of 12 N.E.2d 97, 102 (Ind. Ct. App. 2005). The trial court’s findings and conclusions

will be set aside only if they are clearly erroneous, i.e., when the record contains

no facts or inferences supporting them. Id. A judgment is clearly erroneous

when a review of the record leaves us with a firm conviction that a mistake has

been made. Id. We neither reweigh the evidence nor assess the credibility of

witnesses, but consider only the evidence most favorable to the judgment. Id.

We observe that findings made sua sponte control only as to the issues they

cover, and a general judgment will control as to the issues upon which there are

no findings. Id. A general judgment entered with findings will be affirmed if it

can be sustained on any legal theory supported by the evidence. Id.

[16] Chester, having had the burden of proof at trial, appeals from a negative

judgment and will prevail only if he establishes that the judgment is contrary to

law. Romanowski v. Giordano Mgmt. Grp., LLC, 896 N.E.2d 558, 562 (Ind. Ct.

App. 2008). A judgment is contrary to law when the evidence is without

conflict and all reasonable inferences to be drawn from the evidence lead to

only one conclusion, but the trial court reached a different conclusion. Id.

[17] Having reviewed the record before us, we reject Chester’s claim that he

established ownership in the 494 items of personal property and their values.

At trial, Chester testified that he acquired the items over the span of thirty years

through purchase at auction, antique sales, or garage sales, or by the process of

bartering, trading, or swapping. He assembled the detailed list of the items

from memory and based the assigned values on his acquisition of the items, as

well as his personal experience. He presented the testimony of various friends

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 10 of 12 to support his position on ownership and value. However, the Sisters presented

testimony that some items on the list were not Chester’s, but, instead, belonged

to the estate. They also presented evidence that, during and after Chester’s

residence at the 6138 Property, he removed many items of personal property,

including items that belonged to the estate. The Sisters testified that, other than

five specified vehicles, the items of personal property were not located in either

residence or on either property, were not there when Kye took possession of the

6138 Property in January 2012, and that they did not otherwise have possession

of or dispose of the items. As far as value, the Sisters presented testimony that

the vehicles had been outside or in a dilapidated barn for at least 10-15 years,

and some had been exposed to the elements for decades. Thus, at best, the

evidence is conflicting as to both ownership and value.

[18] Even assuming that, as Chester claims, he established ownership in and fair

market value of the 494 items of personal property, he has not shown that he is

entitled to relief. Although Chester testified that when he left the properties, he

took nothing with him other than three specific items, Kye testified that the

home was almost bare when she took possession of it in January 2012. She

further testified that the Sisters did not retain or destroy the items. The record

thus reflects conflicting evidence as to what happened to the 494 items. Indeed,

Chester recognizes, “The testimony is contested . . . that [he] removed most of

the items[.]” Appellant’s Br. at 13.

[19] Given the evidence before it, the trial court determined that Chester owned the

thirty-two items identified in Exhibit GG and ordered that he was entitled to

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 11 of 12 possession of those items; however, it denied his request for monetary damages,

as any valuation was too speculative. As to the remainder of Chester’s specified

items of personal property, the trial court determined that Chester failed to meet

his burden to establish that those items (1) still exist, or (2) are, or were ever, in

the possession of Kye or Tye. Chester urges us to find that the trial court’s

decision was in error, but reduced to its essentials, Chester’s claim on appeal is

a request for us to reweigh the evidence, which we cannot do. Fowler, 830

N.E.2d at 102. Chester has not shown that the trial court’s judgment and order,

finding in favor of the Sisters, in part, and in his favor, in part, was contrary to

law.

[20] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1506-PL-740 | March 15, 2016 Page 12 of 12