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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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.

FILED
Jul 13 2010, 9:00 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANTS: STEPHEN R. SNYDER RANDALL L. MORGAN Syracuse, Indiana

ATTORNEY FOR APPELLEES: JOSEPH W. EDDINGFIELD Wabash, Indiana

IN THE COURT OF APPEALS OF INDIANA
DONALD JOHNSTON, TRUSTEE and TERRY M. JOHNSTON, CO-SUCCESSOR TRUSTEE, Appellants-Plaintiffs, vs. CARL W. JOHNSTON, JACK MIKEY and NATHAN MIKEL d/b/a MIKEL FARMS, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 43A03-0912-CV-568

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT The Honorable Rex L. Reed, Judge Cause No. 43C01-0701-PL-58

JULY 13, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge

STATEMENT OF THE CASE Appellants Donald Johnston ("Donald"), as Trustee of the Donald Johnston Family Trust, and Terry M. Johnston ("Terry"), as Co-Successor Trustee of the Henry Johnston Family Trust, appeal from the trial court's Judgment and Order for Distribution of Sale Proceeds ("the Judgment"). We affirm. ISSUES Donald and Terry raise two issues, which we restate as: I. Whether the trial court erred by not granting additional equitable relief to

Donald and Terry in the course of distributing sale proceeds; and II. Whether the trial court erred in the course of calculating the costs and

expenses to which Donald and Terry are entitled. FACTS AND PROCEDURAL HISTORY This case concerns a forty-five (45) acre tract of land ("the farm") in Kosciusko County. The farm consists of forty-three (43) acres of tillable land and a home, detached garage, and three (3) outbuildings on the remaining two (2) acres. Following the death of their mother in 1986, three brothers, Donald, Henry Johnston ("Henry"), and Defendant Carl W. Johnston ("Carl")1 inherited the farm. Next, Donald, Henry, and Carl each established separate revocable family trusts. Each brother transferred title for his onethird undivided interest in the farm into his respective trust. The three brothers were the

Carl died prior to the trial court's evidentiary hearing. It does not appear that his estate has been substituted as a party.
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primary trustees of their respective trusts. Henry named his sons, Terry and Craig Johnston ("Craig"), co-successor trustees. From the time the brothers inherited the farm until some point in 2004, Carl worked on the farm on a day-to-day basis and Donald and Henry were less involved. Carl began to lose his sight in 2004 and could no longer operate the farm. At some point in 2005, Carl brought in Appellees Jack Mikel ("Jack") and Nathan Mikel d/b/a Mikel Farms (collectively, "Mikel Farms") to farm the land on a sharecropper basis. In April 2005, Donald, Carl, and Terry, as Henry's representative, met to discuss the status of the farm. Donald and Terry believed that all three had agreed that Donald should manage the farm from that point forward. Carl apparently did not accept being replaced by Donald and continued to dispute who had the authority to make decisions about the farm. After their meeting, Donald and Terry repeatedly asked Carl for

information about his arrangement with Mikel Farms but did not receive a detailed response. Carl wanted to sell the farm directly to Mikel Farms, but Donald and Terry did not agree. Henry died on September 20, 2005. In late 2005-2006, at Carl's request Mikel Farms removed brush and a tree from the farm, for which they billed "Johnston Farms" $16,110.00. Appellees' App. p. 37. Mikel Farms also installed an irrigation system, which irrigated the farm and a neighboring tract of land owned by Mikel Farms. In February 2006, during another meeting, Donald and Terry told Carl that they wanted Mikel Farms removed from the property, but Carl said that it was too late to evict
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Mikel Farms in that year. On May 17, 2006, Carl and Craig, each signing as an "Owner" of the farm, and Jack, signing as an "Opperator [sic]," executed a "Land Lease." Appellants' App. p. 154. The Land Lease, in its entirety, provides as follows: I agree to Lease the Johnston Family farm to Mikel farms [sic] for the term of no less than 10 YRS. This agreement starts as of 2006 and expires December 31 2016. This agreement is created to protect the investment made by Mikel farms [sic] for the Irrigation system Installed. Mikel Farms is the sole Owner of the Irrigation, and will be responsible for any expenses involved. A Payment of $4000.00 will be made no later than November 30 each year. Id. Mikel Farms paid rent to Carl in 2006 but did not pay any rent to Carl or anyone else in 2007, 2008 or 2009. Jack and Carl had agreed that Mikel Farms could offset his rent payments with the $16,110.00 unpaid bill for Mikel Farms' removal of brush and a tree on the farm. Donald and Terry were not made aware of the Land Lease or Jack and Carl's agreement to offset rent payments against the unpaid bill. On November 27, 2006, Donald and Terry, who informed Mikel Farms that they represented "67% ownership" of the farm, gave Mikel Farms written notice that Mikel Farms' tenancy was terminated and demanded that Mikel Farms remove all equipment from the farm. Appellants' App. p. 155. Mikel Farms did not comply with Donald and Terry's demand. On January 17, 2007, Donald and Terry filed this case against Carl and Mikel Farms. As to Carl, Donald and Terry asked the trial court to partition the farm by ordering it sold at public auction and to order Carl to provide an accounting for his past management of the farm. As to Mikel Farms, Donald and Terry asked the trial court to terminate any lease agreement Mikel Farms had entered into for the farm and to find
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Mikel Farms liable for waste for cutting down a tree. Mikel Farms filed a counterclaim, asking the trial court to order Donald and Terry to pay Mikel Farms for brush removal on the farm. Mikel Farms also asked the trial court to allow Mikel Farms to continue to farm the land pursuant to the Land Lease, or, in the alternative, to order Donald and Terry to pay Mikel Farms for the value of the irrigation equipment Mikel Farms installed at the farm. On February 29, 2008, Mikel Farms purchased the Carl W. Johnston Family Trust's one-third interest in the farm. Carl consented to the entry of summary judgment as to Donald and Terry's claims to terminate any lease agreement with Mikel Farms and for partition of the farm. Mikel Farms did not consent to summary judgment on those claims. On June 11, 2008, the trial court granted partial summary judgment in favor of Carl and against Donald and Terry as to their claim for an accounting of the farm's finances during Carl's management. Subsequently, the trial court granted Donald and Terry's request to partition the farm and ordered the farm sold at public auction. Mikel Farms objected to the auction. The trial court deemed Mikel Farms' objection waived due to failure to pay a bond. Mikel Farms appealed the trial court's judgment, and this Court affirmed. See Mikel v. Johnston, 907 N.E.2d 547, 553 (Ind. Ct. App. 2009). On April 20, 2009, the farm was sold at public auction. Jack purchased the farm for $325,000.00. A court-appointed commissioner subtracted costs of the sale and unpaid taxes from that amount and deposited net sales proceeds in the amount of $309,012.86 with the trial court clerk pending the trial court's decision on the distribution of the
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proceeds.

Subsequently, the trial court authorized the payment of $400.00 to the

commissioner for compensation, reducing the net sales proceeds to $308,612.86. On October 28, 2009, after a bench trial, the trial court issued the Judgment. In the Judgment, the trial court found in favor of Mikel Farms and against Donald and Terry on Donald and Terry's claim to terminate any lease agreement regarding the farm and on Donald and Terry's claim for waste. The trial court also found in favor of Donald and Terry and against Mikel Farms on Mikel Farms' counterclaim. Finally, the trial court distributed the net sales proceeds, taking into account Donald and Terry's costs and expenses and their trial attorney's fees, as follows: Donald Johnston Trust (via Donald): Henry Johnston Trust (via Terry): Mikel Farms: Stephen R. Snyder (Donald and Terry's attorney at trial): Appellants' App. p. 17. DISCUSSION AND DECISION I. STANDARD OF REVIEW None of the parties asked the trial court to issue findings of fact and conclusions of law. However, the trial court issued some findings sua sponte. The following standard of review applies: Sua sponte findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. When a court has made special findings of fact, an appellate court reviews sufficiency of the evidence using a two-step process. First, it must determine whether the evidence supports the trial court's findings of fact; second, it must
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$100,708.95 $100,708.95 $99,591.46 $7,603.50

determine whether those findings of fact support the trial court's conclusions of law. Findings will only be set aside if they are clearly erroneous. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made. Gibbs v. Kashak, 883 N.E.2d 825, 827-828 (Ind. Ct. App. 2008) (quoting Estate of Skalka v. Skalka, 751 N.E.2d 769, 771 (Ind. Ct. App. 2001)). We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Tew v. Tew, 924 N.E.2d 1262, 1265 (Ind. Ct. App. 2010). II. EQUITABLE DIVISION OF PROCEEDS FROM PARTITION Partition is a proceeding to enforce a right to the division of property and to have the shares set off in severalty. Pavy v. Pavy, 121 Ind. App. 194, 98 N.E.2d 224, 226 (Ind. Ct. App. 1951). If division cannot be effected without substantial injury to the owners, the court shall order the real estate sold and the proceeds distributed to the owners according to their respective shares. Janik v. Janik, 474 N.E.2d 1054, 1056 (Ind. Ct. App. 1985). The process of partitioning property is governed by statute. See Ind. Code

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