78 N.E.3d 708
Ind. Ct. App.2017Background
- Harold Silberman executed a revocable trust (2002) and later amendments and a will; Cynthia (wife) and his adult children Richard and Susan were named as co-trustees/co-personal representatives.
- Harold, gravely ill with end-stage COPD, was hospitalized in January 2013; he had a safe deposit box at PNC titled to Harold, Richard, and Susan containing cash ($46,182), a Philippe Patek watch, coins, and a pen set.
- Cynthia obtained a Financial Power of Attorney (prepared by friends Pat/Denis), presented it to PNC on February 7, 2013, and removed the $46,182 and other items from the box without notifying Richard or Susan; she later placed the cash in her Key Bank safe deposit box and used some funds for living expenses.
- Richard and Susan filed a petition claiming undue influence, lack of capacity for amendments, breach of fiduciary duties, and conversion of trust property; a seven-day combined trial followed.
- The trial court found Cynthia unduly influenced Harold, lacked authority under applicable documents, and converted the $46,182; it awarded treble damages ($138,546).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cynthia's removal of $46,182 from a jointly-titled safe deposit box constituted conversion and supported treble damages | Richard & Susan: the cash was a determinate sum held in a safe deposit box for safekeeping, so Cynthia knowingly exerted unauthorized control and committed conversion; they sought treble damages under the civil conversion statute | Cynthia: the cash was fungible/profits from the ticket business or not specially entrusted to her; access was authorized by the POA or as a seller, so no conversion occurred | Court: affirmed conversion. The cash was a determinable sum entrusted to the bank for safekeeping and thus identifiable as a special chattel; Cynthia’s access and retention were unauthorized. Treble damages under Indiana Code §34-24-3-1 were properly awarded |
Key Cases Cited
- State v. IBM, 51 N.E.3d 150 (Ind. 2016) (standard of review for trial court findings and conclusions)
- JET Credit Union v. Loudermilk, 879 N.E.2d 594 (Ind. Ct. App. 2008) (civil recovery and treble damages available where elements of criminal conversion are proven by preponderance)
- Huff v. Biomet, Inc., 654 N.E.2d 830 (Ind. Ct. App. 1995) (money can be subject to conversion only when identifiable as a determinate sum entrusted for a specific purpose)
- Kopis v. Savage, 498 N.E.2d 1266 (Ind. Ct. App. 1986) (distinguishing refusal-to-pay-debt from conversion when funds were not delivered to a third party for safekeeping)
- Midland-Guardian Co. v. United Consumers Club, Inc., 502 N.E.2d 1354 (Ind. Ct. App. 1987) (conversion where separately identified holdback funds were entrusted and wrongfully retained)
- In re Clayton, 778 N.E.2d 404 (Ind. 2002) (example of conversion where fiduciary spent funds earmarked for client)