Julio Campins, Jr. brings his appeal to this court after John Capéis and his wife, Dana, recovered $11,100 in their suit against him, individually, and as his two business entities, Hollywood Gold and Silver and Zeboné Gallery, Jewelry & Coin. The Capelses sued under IND.CODE 34-4-30-1, which authorized them to sue for treble damages because they were victims of a criminal offense against property— they suffered a burglary and consequent theft of their jewelry. The trial court ruled Campins liable for the value of some of their jewelry because he had purchased and had then destroyed some pieces when he know or should have known they were stolen. This being the offense of criminal mischief, the trial court awarded the Ca-pelses treble damages. Campins principally attacks individual portions of the trial court’s findings of fact and conclusions of law, but our ultimate decision, broadly stated, is that said findings and conclusions amply and correctly support the court’s legal result. However, the award itself must be modified slightly. We affirm and so modify and additionally remand for hearing on appellate attorney fees.
ISSUES
Campins’s issues, trimmed to their essential elements, are:
1. Whether the trial court erred in determining Campins liable to the Ca-pelses under IC 34-4-30-1, i.e. did the preponderance of the evidence show him liable for criminal mischief?
2. Whether, if Campins is indeed liable, • the trial court granted excessive damages.
Sometime between January 11 and January 13, 1981, one Earl Hall, eighteen years old, stole various items of jewelry from the Capelses’ home (for which he was later convicted). Upon discovery of the loss, the Capelses issued flyers, describing the missing jewelry and offering a reward for its return, and contacted various gold and silver dealers where the items might have been sold by Hall. On January 15 or 16, in the course of the search, Mrs. Capéis spoke with Campins, sole proprietor of two such dealerships. She claims he admitted purchasing some of the Capelses’ jewelry but told her he had already melted it down with the exception of a sterling silver ring which he returned to her. Upon Campins’s refusal to make restitution for the destruction of the jewelry, the Capelses brought suit against him. In their two-count amended complaint (consolidation of two separate suits) the Capelses alleged that various pieces of jewelry had been destroyed at Zeboné Gallery and at Hollywood Gold and Silver and requested treble damages, contending Campins had intentionally destroyed their property with knowledge it was stolen.
At trial, the nucleus of the action revolved around the jewelry allegedly melted down at Zeboné Gallery, particularly three national racing championship rings awarded by United States Auto Club (USAC) and a free-form wedding band with twelve diamonds. (Little testimony was elicited regarding jewelry destroyed at Hollywood Gold and Silver, and the court issued no judgment upon that count.) In support of the Capelses’ allegations that Campins did indeed destroy these particular rings with culpability required for liability, Mrs. Ca-péis testified without objection that the thief, Hall, stated he had actually sold her wedding ring to Zeboné Gallery. This is in addition to her testimony, recited above, of Campins’s actual admission of possession. Campins himself stated he had seen USAC rings when he sorted through his acquisitions for melt-down and introduced a receipt for $251, made out by an employee of Zeboné Gallery and issued to Earl Hall on January 11, for three 10K gold rings, one 14K gold band, and the sterling silver ring returned to Mrs. Capéis. In fact, at one point in the transcript of the trial, we find Campins as much as admitted having bought the jewelry:
“Q. The first time that you did talk to [Mrs. Capéis], what, what was your conversation?
A. I had told her that unfortunately the rings had been melted and I was very sorry....”
Record, pp. 98-99.
Testimony was also presented to substantiate the claim that Campins knew or should have known that the rings he destroyed were stolen. The Capelses rely heavily on the evidence that despite the fact Campins had had his secondhand dealers license for almost five months prior to this incident, he failed to abide by municipal ordinances regulating certain practices of such dealers. In particular, one ordinance requires dealers to hold intact each purchased item for at least ten days after the date of purchase. Here, Campins kept the rings for, at most, five days. Record, p. 124. These dealers are also required to keep a record book, chronicling each purchase, and separate cards for each item, said cards to be turned in to the police every Friday. Id. The book and the cards are specifically directed at accurate identification of both the purchased articles and the seller, requiring such things as:
“[a]n accurate description of the article received; the amount of money paid for it; the exact time of the transaction; and the name, residence address, telephone number, age, color, height, weight, complexion, style of beard or mustache, any visible distinguishing marks, style of dress, and the number of any license badge of the person delivering the goods to the licensee.”
Id.
The cards were also to display the right thumbprint of the seller. During direct examination, Campins explained he required only the information on a driver’s license to make sure the customer was “of
In this same vein, Capéis testified his three USAC rings very clearly exhibited the name of the recipient on their faces: “P. Jones” (Parnelli Jones) on one and “J. Capéis” on the other two. Neither name matched that of the eighteen-year-old seller, Earl Hall, who was not even old enough to hold a driver’s license when any of the rings were awarded. Campins, in fact, stated he specifically noticed the USAC rings because they looked like class rings with different emblems. However, he further declared he did not examine the rings and thus failed to see the names near those “different emblems,” as evidently his employee, who initially purchased the rings, similarly failed to do.
After presenting evidence of Campins’s liability, the Capelses presented evidence of the value of their rings. Mrs. Capels’s wedding band, having been recently appraised at $700, was easily valuated. The USAC rings, for which the Capelses had requested $350 apiece in their complaint, proved a different matter.
The three USAC rings at issue here had been awarded to Capéis in 1972, 1977, and 1978. (He had won five in all.) Each ring signified a national championship earned in a particular automobile category and given to the car’s owner and the driver. In 1972, Parnelli Jones gave Capéis his owner’s ring in appreciation for his work as chief mechanic of Jones’s Indy car. Capéis later won his 1977 and 1978 rings as the actual owner of championship dirt division cars, driven by Bill Vukovich and Pancho Carter. The 1972 ring signified Capels’s work as supervisor of what the media labelled a “super team” after having been instrumental in winning three straight Indy car championships (1970, 1971, 1972). As for his own owner’s rings, they represented the large financial investment as well as time required to excel in any division of USAC competition. Sentimentally, Capéis described these rings as being enduring symbols of his accomplishments and USAC’s recognition thereof. Throughout his testimony, his feelings for these rings were apparent:
“I, it’s the one thing that you can lean back on in your past and say, ‘Well, I did this’ and it’s something you’d like to keep, you know, it may be something that your heirs won’t want anything to do with, it may be something that collectors may want....”
Record, p. 21.
“I paid for them in blood or sweat, more or less_
“To me, those rings had a value of being presented before many people at an awards banquet for an accomplishment at the time, and they were personal artifacts, and I would never ever feel the same if I just went down and hired somebody to replace my rings for me.”
Record, p. 30.
“Made me feel real well, it meant, it meant that I felt like that at one time, I was good enough to have been the champion mechanic, and I was proud of it.”
Record, p. 31. There was also more concrete evidence for use in affixing monetary values to the rings.
Each heavy, gold ring bore a synthetic stone and had been molded to display the USAC emblem, the name of the recipient, the specific achievement being rewarded,
In his assessment of the case, the trial judge concluded the following:
“FINDINGS OF FACTS
* * sK * ⅜5 sfc
4. At all times material herein Plaintiffs were the lawful owners of certain items of jewelry, such being three (3) United States Auto Club (USAC) award rings and one (1) gold freeform design wedding band with twelve (12) diamonds;
5. On or about January 11, 1981, said items of jewelry were unlawfully removed from Plaintiffs’ home without Plaintiffs’ knowledge, consent or authorization by Earl Hall, a nineteen (19) [sic] year old male;
6. On or about January 11, 1981, said items of jewelry were sold by one Earl Hall to Defendant for Two Hundred Fifty ($250.00) Dollars;
7. On or about January 13, 1981, Defendant Julio C. Campins, Jr., destroyed said items of jewelry during the process of recovering their gold content in the course of his business;
8. At all times material herein there was in full force and effect a municipal ordinance, to-wit: Indianapolis Code, Section 17-460, Retention of Acquired Property, which was at all times material herein as follows:
“All property received by a licensee under this article shall be held intact by the licensee for at least ten (10) days after the article is purchased. ...”
9. On or about January 13, 1981, with due diligence Plaintiffs contacted gold and silver dealers in the area and circulated among dealers in gold and silver descriptions of items of jewelry stolen earlier from Plaintiffs’ home;
10. Defendant’s failure to comply with provisions of Indianapolis Code Section 17-460 prevented recovery of the three USAC award rings and one free-form design wedding band by Plaintiffs;
11. At or before the time of destruction of said items of jewelry by Defendant, Defendant knew or should have known that said items of jewelry were stolen property because:
A. The USAC award rings were unique and Defendant acknowledged the peculiar design and weight of the rings attracted his attention;
B. The USAC award rings were custom engraved and/or embossed with the names ‘P. Jones’ and/or ‘J. Capéis’;
C. Defendant acknowledged that as a long-term resident of Indianapolis, Indiana he was familiar with automobile racing, drivers, events and racing memorabilia and recognized the name ‘P. Jones’ to be Parnelli Jones, a name well known among racing fans;
D. The seller of said rings to Defendant was a nineteen [sic] year old male named Earl Hall who furnished his name as Earl Hall at the time of the sale of the rings to Defendant;
E. Neither Defendant nor his agents or employees questioned Earl Hall as to his ownership of the three (3) USAC award rings or the free-design wedding band, and Defendant acknowledged it is his policy to refrain from questioning potential sellers as to the ownership of items they desire to sell; and
F. Neither Defendant nor his agent or employees made any attempt to locate the lawful owners of the rings even after they became aware of the unique nature of the rings;
12. At the time of their destruction by Defendant each of the USAC award rings was worth One Thousand ($1,,000) Dollars.
13. At the time of its destruction by Defendant the free-form design wedding band with twelve diamonds was worth Seven Hundred ($700) Dollars;
14. There existed at all times material herein a statute of the State of Indiana, such being Indiana- Code 34-4-30_
CONCLUSIONS OF LAW
1. The law is with Plaintiffs and against Defendant.
2. Defendant was at all times material herein bound by the provisions of Indiana Code Section 17-460, Retention of Acquired Property;
3. Defendant is liable to Plaintiffs for the value of the three USAC award rings and one free-design wedding band, such value being as of the time of the destruction of the rings, and under provisions of Indiana Code 34-4-30-1 Defendant is liable to Plaintiffs for treble damages. Computation of damages is as follows:
3 USAC award rings at $1,000 each = $3,000
1 Free design wedding band at $700 each = 700
TOTAL • $3,700
Application of Treble Damages X_3
TOTAL $11,100.
4.If necessary to support the judgment herein, any of the above conclusions of law shall be deemed Findings of Fact and any of the stated Findings of Fact may be deemed Conclusions of Law.
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that -Plaintiffs recover from Defendant the sum of Eleven Thousand One Hundred Dollars ($11,100) plus costs of this action.”
Record, p. 153 (Emphasis added.)
DECISION
One preliminary topic must be cleared up before proceeding further with this case, and that is the matter of the erroneous judgment. The Capelses sought damages on two individual counts, involving different stolen items sold to different businesses, but judgment was issued upon only one. The trial court erred in this respect.
See Isler v. Isler,
(1981) Ind.App.,
Liability
When findings of fact and conclusions of law are requested by the parties, as occurred here, we will not set aside the judgment premised thereon unless it is clearly erroneous, i.e. unless we are definitely and firmly convinced the trial court committed error. The findings must disclose a valid basis for the legal result reached in the judgment, and evidence at trial must support each of the specific findings, with deference given to the court where such evidence conflicts.
Town of Rome City v. King,
(1983) Ind.App.,
This suit was brought under the auspices of IC 34-4-30-1, which states:
“If a person suffers a pecuniary loss as a result of a violation of IC 35-43, he may bring civil action against the person who caused the loss for:
(1) an amount equal to three (3) times his actual damages;
(2) the costs of the action; and
(3) a reasonable attorney’s fee.”
Although not a model of clarity, the court’s findings designate the IC 35-43 offense when it states, “At or about the time of destruction of said items of jewelry by [Campins], [Campins] knew or should have known that said items of jewelry were stolen property_” The IC 35-43 offense described here is criminal mischief, found at IND.CODE 35-43-1-2(1) (West 1978) (amended 1983 Ind.Acts, P.L. 326 § 1):
“A person who:
(1) recklessly, knowingly, or intentionally damages property of another person without his consent ...
commits criminal mischief, a Class B misdemeanor.”
(Emphasis added.)
Moore v. State,
(1981) Ind.App.,
First of all, a conviction for criminal mischief is not required to find Campins trebly liable.
See James v. Brink & Erb, lnc.,
(1983) Ind.App.,
First of all, it is pretty evident Campins did indeed buy the stolen jewelry. Mrs. Capéis testified he as much as admitted having had possession of the rings. He himself virtually admitted the same when put on the stand. Other testimony, such as Hall’s testimony he sold the wedding ring to Zeboné Gallery and Campins’s return to Mrs. Capéis of another ring from the same sale, support that conclusion. There is some conflict over the dates of the burglary, the Capelses insisting it was January 13 but the receipt to Hall showing Campins purchased the property, January 11. There was testimony supporting either date, and the trial court’s choice of one or the other is entirely up to him so long as there is probative evidence supporting such choice. Regardless, there is plenty of evidence pointing to Campins’s purchase of the stolen items, notwithstanding the conflict in testimony over the date of the theft. In the main, the Capelses presented a solid case for showing Campins bought the property.
Similarly, there seems to be little doubt that once in his possession Campins destroyed the rings without the Capelses’ consent. The primary contention remains whether the Capelses proved, by a preponderance of the evidence, the second element of criminal mischief — culpability. As the evidence was presented, Campins did recklessly destroy the Capelses’ property.
Our criminal code defines the concept of “recklessly”:
“[a] person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.”
IND.CODE 35-41-2-2(c). As amplified by the Criminal Law Study Commission,
“recklessness is between the poles of intentionality and negligence. Recklessness is like the former in that the actor is conscious of a forbidden harm, and he realizes that his conduct increases the risk of its occurrence and his actions indicate an attitude of mental indifference to obvious risks. It is a form of intentional harm-doing in that it is volitional in a wrong direction. Recklessness, however, differs from intentionality in that the actor does not seek to attain the harm; rather he believes that the harm will not occur. That he deliberately ‘took the risk,’ that he thought therewas some increased likelihood of harm, does not alter the basic fact that he believed that no harm would actually be committed.”
See Denman v. State,
(1982) Ind.App.,
Campins’s policy of refraining from questioning closely those who sold him jewelry had already resulted in the receipt of stolen goods but no consequent change of policy. His employee’s purchase from Hall therefore is directly attributable to a deliberate course of action which could only foster the increased risk of buying stolen items. And one would naturally wish to avoid financial losses engendered by having to return such property to police. Thus, it is easy to understand Campins’s haste in destroying his purchases. The ordinances of which Cam-pins professed ignorance (except for certain exceptions) were designed to alleviate these practices. This policy, plus the distinctive anomaly of the eighteen-year-old Hall selling three USAC championship rings embossed with “P. Jones” and “J. .Capéis” as well as an expensive wedding ring, is sufficient to constitute reckless conduct under a preponderance of the evidence standard. Campins realized or should have realized he was destroying property to which he had no rightful claim. The trial court did not err in establishing Campins’s liability for criminal mischief.
See also Shaw’s D.B. & L., Inc. v. Fletcher,
(1979) Tex.Civ.App.,
Damages
The remaining issue, now that liability has been established, is the size of the actual damages which Campins asserts are excessive. Our standard of review in this instance follows:
“In order to justify a reversal on the ground of excessive damages, the amount of damages assessed must appear to be so outrageous as to impress the court as being motivated by passion, prejudice and partiality.... Reversal is not justified, however, if the amount of damages awarded is within the scope of the evidence before the court.”
Ingmire v. Butts,
(1975)
When personal property is the subject of an award, damages are measured by its fair market value at the time of the loss, fair market value being the price a willing seller will accept from a willing buyer.
Bottoms v. B & M Coal Corp.,
(1980) Ind.App.,
Both parties have argued this issue in terms of the methods of valuating used household goods and wearing apparel. Such system would appear appropriate because used household goods and clothing have a greater actual value to their owners than they do on the secondhand market, similar to the problem here, where Capels’s feelings about the rings as momentos outstrips his ' feelings for them as jewelry. Instead of allowing only the fair market
First of all, jewelry is neither a household good,
Union Light, Heat & Power Co. v. Heving,
(1933)
We find a basis for proceeding in the fundamental reasoning behind awarding higher actual values to owners of used household goods and wearing apparel:
“The underlying principle of universal application is that of fair and just compensation for the loss or damage sustained. ... Where subordinate rules for the measure of damages [fair market value for personal property] run counter to the paramount rule of fair and just compensation, the former must yield to the principle underlying all such rules.”
Aufderheide v. Fulk,
“Sometimes fair market value cannot be determined, or would be inadequate, as when for example, the article destroyed was unique or possessed qualities the special nature of which could only be appreciated by the owner. In such a case additional principles are helpful in determining proper compensation to the injured party.”
United States v. Maryland,
(D.C.Cir.1963)
When we refer to sentimental value, we do not mean mawkishly emotional or unreasonable attachments to personal property.
See Mieske v. Bartell Drug Co.,
(1979)
Capéis testified not only to the actual worth of the rings as mere pieces of custom-embossed gold but also to his emotional attachment to each. He described the pride and gratification he felt upon their ownership and elaborated on the effort required to win them. Actual estimates of their worth — to him — ranged from $700 to $1000 each; however, he himself settled upon the $750 figure. Campins alternatively argues each ring was worth $67 (wholesale gold), $135-200 (retail gold), or $349 (replacement in 1977). We believe the evidence justified an award of $750.
The essential point is that the actual decision with regard to damages is a question for the trier of fact.
Floyd v. Jay County Rural Electric Membership Corp.
(REMC), (1980) Ind.App.,
In light of the substantial evidence of the replacement value of the rings, the increase in the price of gold, and Capels’s justifiable sentimental feelings, we would see no error in finding damages in the amount of $750 apiece. 2 See also Bond v. A.H. Belo Corp., supra (sentimental value of family papers and photographs stipulated as greater than $2,500); Brown v. Frontier Theatres, Inc., supra (heirlooms valued in 1963, as high as $666.66 for wedding veil, shoes, point lace collar, $666.66 for key-wound watch, $333.33 for cameo pins, etc.)
However, while we ultimately conclude the court did not act erroneously in allowing an award in excess of the replacement value of the rings (based on the unique circumstances here and special attachment to this property), we can hardly deem it appropriate to fix a value higher than that asserted by the owner. Capéis finally settled upon a figure of $750 per ring; the court’s award of $1000 apiece could only have been improperly based on speculation. To decide otherwise would be to open a Pandora’s box of problems in the computation and proof of actual value. By our decision here, we simply conclude that certain property, by its very nature, has an element of sentiment essential to its existence. In this case, we refer to symbols for achievements of national stature and recognition and the calculation of their actual value. But we must also add the proviso that even for significant awards or mementos we do not intend to permit fanciful speculation as to their worth. We must fashion our remedy within the realm of sensibility, as here, where $750 is only
Attorney Fees
The Capelses filed a motion in this court for attorney fees incurred by appellate expenses. The statute under which this suit was brought, IC 34-4-30-1 indeed provides for recovery of
“(2) the costs of the action; and
(3) a reasonable attorney’s fee.”
By virtue of case law, we believe that this statutory provision for “reasonable” attorney fees encompasses appellate fees.
See Templeton v. Sam Klain & Son, Inc.,
(1981) Ind.,
Affirmed, modified, and remanded for hearing on fees.
Notes
. It is important to note that Capéis established the lack of market value as it was his burden to do.
See Jensen v. Chicago & Western Indiana R.R. Co.,
(1981)
. It is improper to consider evidence of what a person would not sell an item for. In other words, Capels's statement that he "wouldn’t have sold those rings for Fifteen Hundred to Two Thousand Dollars to anybody" could not have been used for purposes of estimating damages.
See Cherry v. McCutchen,
(1941)
. Contrary to counsel’s assertion in her motion for appellate fees, the trial court’s judgment includes no award for trial fees. There was only an award for costs. Failure to address this issue on appeal is a waiver thereof. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7);
Indiana Hospital Licensing Council v. Women’s Pavilion of South Bend, Inc.,
(1981) Ind.App.,